How can patients protect their private medical information from Paxton gender care probe?
- Oops!Something went wrong.Please try again later.
- Oops!Something went wrong.Please try again later.
In May, Texas Attorney General Ken Paxton announced that his office was investigating two children's hospitals for providing gender-affirming care to minors: Dell Children's Medical Center in Austin and Texas Children's Hospital in Houston.
The state's investigation delves also into a critical legal question: Does patient privacy trump the power of a subpoena or a state inquiry for hospital documents for its gender-affirming care practice?
Because a patient's right to privacy is protected by federal and state law, Paxton is using the Texas business organization code, instead of the health code, to make this request, said Jaime Sorley, a Plano attorney who specializes in health law and health privacy.
Since news of Paxton's investigation, Texas House members voted to impeach him and set up a trial in the Senate this summer where Paxton could face permanent removal. Last week, Gov. Greg Abbott appointed John Scott, a former secretary of state, as interim attorney general. It's unclear how Scott would proceed or not with the gender-affirming care probe.
Under investigation: AG Paxton announces investigation into Dell hospital on child gender-affirming care
Sorley said Paxton launched the probe as if he was investigating a consumer business, in this case two hospitals. In these kind of investigations, the state could fine a business or prohibit them from operating in Texas.
“In addition to the stress on these families, this puts health care providers in a very difficult situation," Sorley said. "Fundamental to an effective patient/provider relationship is trust. If patients don't believe that a provider will be able to protect patient privacy, patients may not seek care or may not share information a provider needs to diagnose or treat the patient."
This statute does not allow the attorney general's office to access personal medical records, said Shelly Skeen, an attorney in Dallas with Lambda Legal, which specializes in preserving civil rights for the LGBTQ community.
"It's unusual" for the Consumer Protection Division to request to examine medical practices, Skeen said. That kind of request is usually saved for anti-trust violations, fraud or not properly doing business, she said.
Paxton's office sent both hospitals a "Request to Examine" that asked for documents related to the hospitals' policies and procedures regarding the use of puberty blockers, as well as the age range of the patients receiving what the request calls "Gender Transitioning and Gender Reassignment Procedures and Treatments." The request also sought the number of times those patients have been counseled on these treatments, the consent forms used in these treatments among other policies and procedures documents.
While not a subpoena, the attorney general has the right to investigate businesses and request their records.
Gender-affirming care is for treating people with a gender dysphoria diagnosis — the sense that a person's body mismatches their gender identity. Gender dysphoria can cause depression, anxiety and a general feeling of "what's wrong with me?"
Medical associations, including the Endocrine Society, the American Psychiatric Association the American Academy of Pediatrics, the American College of Osteopathic Pediatricians and the Human Rights Campaign, all have guidelines for gender-affirming care.
In February 2022, Paxton and Abbott called providing gender-affirming care "child abuse" and asked for Child Protective Services to investigate families whose children received this care. The Texas Legislature passed bills that would make providing gender-affirming care to minors illegal, even with parental consent. Abbott signed the final bill on Friday. The bill will take effect Sept. 1, but could face a legal battle before becoming law.
Does a senator or a congressman have the right to ask for records?
In April, U.S. Sen. Ted Cruz and U.S. Rep. Chip Roy sent a joint letter to Dell Children's that asked for data such as how many minors have been treated for gender dysphorphia, as well as what federal dollars Dell Children's might have received for this treatment and whether Dell Children's makes money on this treatment.
Sen. Cruz and Rep. Roy are just like any other citizen, Skeen said. "You have ability to ask for certain things, but that doesn't mean you're going to get them," she said.
Cruz's office did not comment on the letter but said it did not send a similar letter to Texas Children's.
When care leaves: 'No doctors in the clinic': Dell Children's clinic loses its doctors amid gender-affirming care inquiry
Do these requests violate HIPAA rules?
Both the Request to Examine and the Cruz/Roy letter, are asking for policies and procedures and summary data, not a list of patients with identifiable personal information.
A hospital would not be violating the Health Insurance Portability and Accountability Act, which was created to protect patients' medical records, by honoring these requests as long as the requrests are asking for policies and procedures andnot patient information, Skeen and Sorley both said.
While these requests are not violating HIPAA, anyone could through go through the court process and get a court order or subpoena to receive medical records with personal information. That court order or subpoena would trump HIPAA policies, the U.S. Department of Health and Human Services says in its HIPAA guide.
Both Dell Children's, Texas Children's and the attorney general's offices did not respond to questions around whether personal records had been requested or were being offered or if there were additional requests, subpoenas or court orders.
In addition to HIPAA, there are state protections for minors that do not allow full names and birthdates for minors to be part of court records, which does provide some level of additional protection, Skeen said.
A second hospital: Texas AG Paxton investigating second hospital for gender-affirming care
What happens if the hospitals are asked for medical records?
Hospitals have to notify patients that their records are going to be released, according to HIPAA law. The hospitals also could go to court on behalf of the patients to not comply with that request.
The hospitals, Skeen said, have "a duty to their patients to keep the medical records private."
The patients also could go to court to get their records kept private, she said.
Close to becoming law: Texas lawmakers OK bill banning some treatments for trans kids; SB 14 nears becoming law
What can patients do?
They can send a letter to their hospital or clinic that they expect their medical records to be kept private and they do not authorize the hospital to release the records without their consent, Skeen said.
To prevent a disclosure before it occurs, a patient should contact an attorney to discuss legal options, Sorley said.
A lawyer can send a cease and desist letter to the hospital to stop the release of the records, Skeen said. They could also get a court order protecting their information. Skeen said that Lambda Legal patients can connect to the Lambda Legal help desk, which might be able to match them with an attorney.
The attorney general's office or the hospital "is going to have to share a pretty darn good reason to the court to release them," Skeen said.
If someone believes that their patient information has been improperly disclosed, patients, or their family members, also can file a complaint with the federal Office for Civil Rights, which investigates HIPAA violations: hhs.gov/hipaa/filing-a-complaint However, that process usually involves an investigation after the disclosure has occurred.
This article originally appeared on Austin American-Statesman: How can patients protect their information from Paxton hospital probe?
