Did the VA Violate Patient Confidentiality or Is This Just A Larger Trend?

I saw this post originally on the Shrink Rap blog.  I encourage anyone interested to read the excellent analysis of this situation and a previous one on the Shrink Rap blog.  The original post mentioned that the VA decided that it was in the public interest to disclose confidential medical records of the VA Navy Yard Shooter.  The reader has a choice of two links off the Huffington Post (HP) blog including one that has added commentary from various sources and another is the continuous 7 pages of records that are being commented on.  The arrangement of documents shows the press adding outside color to what are some very plain descriptions of clinical notes about insomnia and some features of how electronic medical records are set up.  The content of the other 107 pages of patient records is unknown.  I have also seen the suggestion that the files were illegally obtained and given to the HP.  I hope this is a case of theft rather than a government sanctioned release of confidential medical documents.  If this was illegally printed off a secure medical record system, the last date and employee number of the person who printed it should be available for investigation.  But after I read the Huffington Post article I came across this:

"The AP obtained 114 pages of [patient] medical records under the Freedom of Information Act after requesting them a few weeks after the shootings. It is unusual for the government to disclose anyone's medical files, but the Veterans Affairs Department agreed that the public interest in the mass killing outweighed [patient] privacy rights in keeping his treatment records secret after his death. In the records the AP obtained, the government withheld the names of all the doctors and others who treated [patient] to protect their privacy."

If it is a case of actual release it is a dangerous precedent.  I know of no legal precedent that allows for a hospital to unilaterally release confidential patient records - even if a patient is deceased, but I am not familiar with exceptions under the Freedom of Information Act.  I have had personal experience trying to get government records and they were never disclosed to me.  Releasing records to the press is probably the worst case scenario.  The press has repeated demonstrated that when it comes to mental illness unless they are trying to write a Pulitzer bound story on the tragedy of mental illness they just don't get it.  Mental health headline stories in this country pay lip service to violence prevention, bash the psychiatric profession and psychiatrists whenever they get the chance, and consistently illustrate that they have no idea why there is a significant problem with untreated mental illness in this country.  How in the world would they be competent or objective enough to analyze any mental health records?

Speculating on the sparse documentation of a clinical encounter is not an accurate way to determine what happened.  Only people who believe "if it isn't written down it didn't happen" would buy that and none of them are experienced clinicians who spend time with patients.

Most psychiatrists are privacy advocates because we understand the sensitive material that is often contained in medical and psychiatric records and how critical that nondisclosure is for treatment.  It is common for people to stop in mid session and ask their psychiatrist: "This is confidential isn't it?  You can't tell anybody about this."  That happens after their psychiatrist has explained the boundaries of treatment and the confidentiality considerations.

I can't help but notice that this disclosure comes during a flurry of financial privacy breaches and warnings from the government to expect more.  Call me a conspiracy theorist, but it seems to me that there has been a concerted effort on the part of our government to compromise the privacy of Americans.  It started with using the Social Security Number as a unique identifier for financial purposes (ironic that the government did not disclose it here in a single case) followed closely by the invention of credit reporting agencies.  After decades of loose regulation and less financial privacy we now see personal data being stolen in millions of records at a time.  We are rapidly headed toward a time when there will be minimal security for personal data and the government seems to be managing that expectation.

Medical privacy is the only thing in the way and in that regard this comes as no surprise.

George Dawson, MD, DFAPA

Supplementary Note 1:  I got an e-mail today (February 3) telling me that TRAC (Transactional Records Access Clearinghouse) has filed a complaint against  Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) for multiple violations of the Freedom of Information Act (FOIA).  I have posted my experience here and how access seemed to very limited to the FBI data that I was interested in on health care fraud by the exorbitant cost they wanted to charge for a lot of information that was probably on a server and could be easily searched.  In this case, from my read of the documents they are just not disclosing the data.  The discrepancy between this non disclosure and the ease of disclosure of protected medical data is striking and somebody needs to find out what it means.  The press release and full text of the complaint is on TRACs web site.

Freedom of Information is Not Exactly Free

I am still trying to figure out how to access information from the Freedom of Information Act (FOIA).  Some data acquired through this act  has proven to be valuable from a research standpoint.  I first became aware of this data a a research technique in the excellent studies by Kahn, looking at the issue of suicide in placebo controlled drug trials of antidepressant and antipsychotic medications.  These were excellent studies and I am surprised that they are not widely referred to whenever the issue of suicidal behavior secondary to a medication or suicidal behavior in drug trials is discussed.  Kahn, et al accessed their raw data through FOIA requests through the FDA.

I have been trying for a long time to access data from the FBI on the basis of an FOIA request.  I started out about 10 years ago and asked them for specific data pertaining to their pre-911 role of auditing physicians billing practices and determining whether or not a physician had committed "fraud" based on a mismatch between the billing statement and the document of the clinical visit.  I know that they had specific documents about this practice and even briefly published a journal detailing their strategies and tactics.  At one point that data was online and then it disappeared.  In order to have a closer look at FBI activity in the area of health care fraud I filed the original request that resulted in no data.  This year, I looked at the FBI reading room again and it discussed the wide availability of information in that venue that could also be copied and sent at a cost to the requester.  Using the FBI form and broadening the request to data pertaining to health care fraud, I completed the following form on the FBI web site on September 1, 2012 (click graphic to expand):

   I  think that it is fairly clear that I am interested in activities pertaining to health care fraud.   I received the following reply today (click graphic to expand):

That is quite a price tag.  $66,702.50 for 667,125 pages or $7,985 for 533 CDs.  I can't imagine that there is a lot of relevant data contained in these pages.  The documents I am looking for comprise no more than 200 pages.  Using their rates that is $20 of information.  The result when I specifically ask for information that I am certain they have is a denial.  If I try to broaden the search and look for myself they offer to send me what could be a small directory off a hard drive.  Figuring 14 kB per page that converts to about 8.9 GB.  The fact that they are willing to send CDs suggests to me that it is already sitting on a hard drive.  My point here is that all of this data could be sitting on a hard drive somewhere in a federal building and I could be searching it from home for free.

If data is declassified and available to the public, why jump through all of these hoops to get it?  If the data was available, I don't think it would be too hard to trace the FBI activity in health care fraud against physicians and get all of the facts out on the table.  As it stands both price tags in this FOIA request are too steep for me and that story will have to be written at another time.  As with many problems that occur with our government  that time is usually when anyone who cared about the issue, all of the politicians responsible for it, and the bureaucrats who actually administered it are long gone.

George Dawson, MD, DFAPA