Doctors, Hospitals in Okla. Could Face Sweeping Legal Changes from Reform

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Doctors and hospitals could face dramatic changes in the way they handle affirmative action rules, patient privacy guidelines and managed care contracts, a GableGotwals attorney warned during the Oklahoma Bar Association's 107th annual meeting.

David B. McKinney discussed those concerns plus a number of other potential disruptive changes affecting the health care industry during a report at the Hyatt Regency Hotel in downtown Tulsa.

"The one that really got my attention is the Sorrel case," he said, referring to a lawsuit that developed from Vermont, Sorrel v. IMS Health Inc. "This is a United States Supreme Court case authored by Justice (Anthony) Kennedy, who I think correctly fancies himself as the court's premier expert on the First Amendment."

McKinney, who prepared a paper for the OBA with Jordon B. Edwards to provide further details, said the case evolved from a Vermont statute stopping drugstores from selling data on how doctors prescribe drugs to their customers.

"Vermont didn't want the drug companies going in and saying, 'Dr. Edwards, why aren't you prescribing Ambien? Why are you prescribing this low-cost sleep aid instead of our high cost Ambien?'" McKinney said.

But while the Supreme Court noted significant state interests in stopping such sales - such as preserving medical privacy or physician confidentiality, or basic public health improvement and potential cost containment - McKinney said the court sided on concerns over information discrimination.

"It held that since there were exceptions to the rule for research, giving the information away and certain other activities, this was a content-based discrimination against those who wanted to sell the doctors' information for a profit and that was a violation of free speech," he said. "They said there are some rights of the government to regulate commercial speech, but they have to be nondiscriminatory about it."

That drew McKinney's concerns over the carefully crafted personal health information rules found in the Health Insurance Care Portability and Accountability Act. The court referred to the act, McKinney said, but did not say HIPAA passes muster.

"I do not think that HIPAA, in its current form, can pass constitutional scrutiny under the Sorrel case," McKinney said. "The reason I'm spending so much time on Sorrel is that I think it's a watershed moment in free speech jurisprudence and it applies in many other respects. If there is a discrimination between the nonprofit and for-profit use of information, that discrimination may very well be unconstitutional."

McKinney pointed to one point in particular.

"HIPAA says that a hospital cannot sell personal health information or use personal health information for most marketing purposes," he said. "I think that one just goes away. But we'll see."

On affirmative action, McKinney pointed to a number of recent developments involving the Office of Federal Contract Compliance Programs.

"The OFCCP is the federal agency that makes sure that government contractors don't discriminate on the base of race and a bunch of other reasons," he said. …