Davis calls out majority again in another DHHR dissent

By Jessica Karmasek | Oct 23, 2015

CHARLESTON – West Virginia Supreme Court Justice Robin Davis again called out the court majority in a dissent filed this week, this time accusing her fellow justices of an “arrogant and complete disregard of federal law.”

Davis dissented to an Oct. 15 opinion, in which a majority of the court’s justices ruled that the state Department of Health and Human Resources must follow an order issued by Kanawha Circuit Court Judge Louis “Duke” Boom in August 2014 to immediately restore access to patients and patient records to the patient advocates working at Mildred-Mitchell Bateman Hospital in Huntington and William R. Sharpe Jr. Hospital in Weston – in this case, Legal Aid of West Virginia.

The DHHR’s Bureau for Behavioral Health and Health Facilities – represented by state Attorney General Patrick Morrisey – had argued that the circuit court’s order violated both the patients’ constitutional rights to privacy and the federal Health Insurance Portability and Accountability Act, more commonly known as HIPAA.

Davis, in her 17-page dissent, noted that the majority correctly found that not one of the exceptions relied upon by the trial court applied to Legal Aid.

“Rather than stopping there and reversing the circuit court’s order, the majority opinion affirmed the circuit court on a different ground,” she wrote. “With absolutely no legal analysis, the majority opinion determined that Legal Aid could have unfettered access to patient information because of the ‘more stringent’ state law exception found under HIPAA.”

She continued, “If the majority opinion had performed but a scintilla of the legal analysis that is required to determine whether a state law is more stringent than HIPAA, it would have reversed the circuit court’s order.”

Davis explained that the majority “merely pointed out” that the DHHR had annually “concluded that our state laws set forth in 64 CSR § 59 are not preempted by HIPAA as our provisions are more stringent.”

“The majority opinion then went on to provide: ‘From the record submitted in this case, the protections set forth in Title 64, Series 59 have been determined to be more stringent than those required by federal law. Accordingly, our state regulations set forth in Title 64, Series 59 are not preempted by HIPAA,’” Davis wrote.

“This was the sum total of how and why the majority opinion determined that our state law was more stringent than HIPAA.”

The justice said the majority’s “total lack of analysis” makes no sense.

“It is illogical to rely on a general finding by DHHR that its regulations are more stringent than HIPAA, when DHHR already had realized its disclosures to Legal Aid violated HIPAA, and DHHR tried to correct the violation by asserting that no authority exists for Legal Aid to indiscriminately access patient information,” Davis wrote. “More fundamentally, the yardstick used by the majority opinion to determine whether a state law is more stringent than HIPAA is absurd!

“Under the majority opinion’s mind-boggling yardstick, all that any state must do to get around HIPAA is unilaterally proclaim that its laws are more stringent than HIPAA. Surely Congress did not mean for HIPAA and the Supremacy Clause to be defeated in such a self-serving manner.”

Justice Allen Loughry, who authored the 28-page majority decision, pointed out that the first and only complaint concerning an alleged violation of HIPAA was filed in 2014 by the DHHR -- almost 20 years after the federal act became law.

“It is clear that inappropriate disclosure of patient information has not been taking place as implied by the DHHR,” he wrote. “Not only have there been no complaints filed until the DHHR instituted one, but the state privacy officers whose responsibility it is to oversee these matters have failed to either independently identify or confirm the existence of any issues concerning the level of access historically afforded to the patient advocates.”

Loughry noted, “HIPAA was never intended to serve as a hindrance to patient services or civil rights; it was designed to prevent the inappropriate use or dissemination of protected

health information. In the case before us, the DHHR has failed to demonstrate that Legal Aid has disseminated any protected health information in violation of federal or state law.”

Davis’ Oct. 22 dissent makes the third filed by the justice in recent weeks.

Davis filed a dissent in a venue case before the state’s high court late last month, and another earlier this month in a separate case against the DHHR over its repeated “noncompliance” with prior orders to better patient care at Bateman and Sharpe, two of the state’s psychiatric hospitals.

Loughry authored the majority opinions in both cases.

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