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