Citizens for Health v. LeavittCitizens for Health v. Leavitt
Charles W. Scarborough [Argued], U.S. Department of Justice, Appellate Section, Washington, DC, Mark B. Stern, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Appellee.
Stacy A. Fols, Montgomery, McCracken, Walker & Rhoads, Cherry Hill, NJ, for Amicus-appellants The National Association of Social Workers, Inc. and PA Chapter of the National Association of Social Workers.
M. Duncan Grant, Pepper Hamilton, Philadelphia, PA, for Amicus-appellant Program for Psychiatry and the Law at Harvard Medical School.
Jonathan S. Martel, Arnold & Porter, Washington, DC, for Amicus-appellant NARAL Pro-Choice America Foundation.
David P. Felsher, New York, NY, for Amicus-appellants Guenter L. Spanknebel, Leonard Morse, Wayne Glazier, Graham L. Spruiell, and Association of American Physicians and Surgeons, Inc.
Before McKEE, RENDELL and NYGAARD,** Circuit Judges.
RENDELL, Circuit Judge.
Appellant Citizens for Health, along with nine other national and state associations and nine individuals (collectively “Citizens“), brought this action against the Secretary of the United States Department of Health and Human Services (“HHS” or “Agency“) challenging a rule promulgated by the Agency pursuant to the administrative simplification provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA“),
(a) Standard: Permitted uses and disclosures. Except with respect to uses or disclosures that require an authorization under
§ 164.508(a)(2) [relating to psychotherapy notes] and(3) [relating to marketing], a covered entity may use or disclose protected health information for treatment, payment, or health care operations ... provided that such use or disclosure is consistent with other applicable requirements of this subpart.(b) Standard: Consent for uses and disclosures permitted. (1) A covered entity may obtain consent of the individual to use or disclose protected health information to carry out treatment, payment, or health care operations.
(2) Consent, under paragraph (b) of this section, shall not be effective to permit a use or disclosure of protected health information when an authorization, under
§ 164.508 , is required or when another condition must be met for such use or disclosure to be permissible under this subpart.
The District Court granted summary judgment to the Secretary on all of Citizens’ claims based on its conclusions that the promulgation of the Privacy Rule did not violate the Administrative Procedure Act, that the Secretary did not exceed the scope of authority granted to him by HIPAA, and that, insofar as the Privacy Rule is permissive and does not compel any uses or disclosures of personal health information by providers, it does not affirmatively interfere with any right protected by the First or Fifth Amendments. Because we reason to the same conclusions reached by the District Court, albeit under a slightly different analysis, we will affirm.
The objectionable provision is only one aspect of a complex set of regulations that is the last in a series of attempts by HHS to strike a balance between two competing objectives of HIPAA—improving the efficiency and effectiveness of the national health care system and preserving individual privacy in personal health information.
A. HIPAA
HIPAA was passed by Congress in August 1996 to address a number of issues regarding the national health care and health insurance system. The statutory provisions relevant to the issues in this case are found in Subtitle F of Title II.1 Aimed at “administrative simplification,” HIPAA Sections 261 through 264 provide for “the establishment of standards and requirements for the electronic transmission of certain health information.” § 261,
Section 264 prescribes the process by which standards regarding the privacy of individually identifiable health information were to be adopted. § 264(a),
B. The Privacy Rule
Because Congress did not enact privacy legislation by its self-imposed three-year deadline, the Secretary promulgated the privacy standards contemplated in Section 264 through an administrative rulemaking process. During this process, the Rule went through four iterations: the Proposed Original Rule, the Original Rule, the Proposed Amended Rule, and the Amended Rule.3 The Original Rule required covered entities to seek individual consent before using or disclosing protected health information for routine uses. Standards for Privacy of Individually Identifiable Health Information, 65 Fed.Reg. 82,810 (Dec. 28, 2000) (codified at former 45 C.F.R. pts. 160, 164 (2002)). Before the Original Rule could take effect, however, the Secretary was inundated with unsolicited criticism, principally from health care insurers and providers, warning that the Original Rule‘s mandatory consent provisions would significantly impact the ability of the health care industry to operate efficiently.4 Standards for Privacy of Individually Identifiable Health Information, 67 Fed.Reg. 14,776, 14,777 (Mar. 27, 2002). He responded by reopening the rulemaking process. Id. at 14,776. The final result was the Amended Rule—the currently effective, codified version of the Privacy Rule, see generally 45 C.F.R. pts. 160 & 164, which is the subject of Citizens’ challenge here.5
The Amended Rule departs from the Original Rule in one crucial respect. Where the Original Rule required covered entities to seek individual consent to use or disclose health information in all but the narrowest of circumstances,7 the Amended Rule allows such uses and disclosures without patient consent for “treatment, payment, and health care operations“—so-called “routine uses.” Id.
Importantly, the Rule contains detailed preemption provisions, which are consistent with HIPAA Sections 1178(a)(2)(B) and 264(c)(2). These provisions establish that the Rule is intended as a “federal floor” for privacy protection, allowing state law to control where a “provision of State law relates to the privacy of individually identifiable health information and is more stringent than a standard, requirement, or implementation specification adopted under [the Privacy Rule].”
Citizens filed this action on April 10, 2003. In its Amended Complaint, Citizens alleged that the Secretary violated the APA and Sections 261 through 264 of HIPAA in promulgating the Amended Rule, and that, to the extent that the Amended Rule rescinded or eliminated the need for consent for the use and disclosure of individually identifiable health information for “routine uses,” the Amended Rule violated privacy rights protected by the Fifth Amendment and free speech rights protected by the First Amendment of the United States Constitution. Citizens for Health v. Thompson, 2004 WL 765356 (E.D.Pa. Apr. 2, 2004), 2004 U.S. Dist. LEXIS 5745, at *22. Both parties moved for summary judgment, and, after a hearing on December 10, 2003, the District Court granted summary judgment in favor of the Secretary. Id. at *2.
On Citizens’ APA claims, the Court concluded that the Secretary had adequately informed the public regarding the proposed rulemaking, examined the relevant data, responded to public comments, and provided a reasoned analysis that rationally connected the facts with the decision to rescind the consent requirement in the Amended Rule. Id. at *33-43. Regarding Citizens’ claims alleging violations of HIPAA, the Court concluded that the changes in the Amended Rule were reasonably related to the legislative purpose of Subtitle F of the Act, and, because the Amended Rule was promulgated before the Original Rule took effect, the Amended Rule did not eliminate any “rights” created under the Original Rule. Id. at *43-46. Finally, regarding Citizens’ constitutional claims, the Court concluded that because (1) neither the First Amendment nor the Fifth Amendment places an affirmative obligation on the State to protect individuals’ rights from harm by third parties and (2) the Amended Rule is wholly permissive as to whether covered entities seek consent from an individual before using or disclosing personal health information for routine uses, the Amended Rule did not violate individual rights under either Amendment. Id. at *46-50.
III. Jurisdiction and Standard of Review
The District Court had jurisdiction under
IV. Discussion
On appeal, Citizens reassert the claims they made before the District Court, that the Secretary, by promulgating the Privacy Rule, (1) unlawfully infringed Citizens’ fundamental rights to privacy in personal health information under due process principles of the Fifth Amendment of the United States Constitution; (2) unlawfully infringed Citizens’ rights to communicate privately with their medical practitioners under the First Amendment of the Constitution; (3) contravened Congress‘s intent in enacting HIPAA by eliminating Citizens’ reasonable expectations of medical privacy; and (4) violated the APA by arbitrarily and capriciously reversing a settled course of behavior and adopting a policy that he had previously rejected.
A. Fifth Amendment Substantive Due Process Claim
In discussing Citizens’ Fifth Amendment claim, the District Court noted that substantive due process bars the government from depriving individuals of life, liberty, or property without due process of law, but it does not “`impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.‘” Citizens for Health, 2004 U.S. Dist. LEXIS 5745, at *46-47 (quoting DeShaney v. Winnebago County Soc. Servs. Dep‘t, 489 U.S. 189, 195 (1989)). Applying this principle to the case at hand, the Court reasoned that, even assuming that individuals have a constitutional right to medical privacy, the Amended Rule is “wholly permissive with respect to whether a covered entity should seek consent from a patient before using his or her information for routine purposes. The Amended Rule neither requires nor prohibits that practice.” Id. at *47-48. In short, “[b]ecause the Amended Rule is not compulsory in nature, it does not affirmatively interfere with any right.” Id. We agree with the District Court that Citizens’ constitutional claims should ultimately be resolved based on the nature of the state‘s involvement in light of the Amended Rule‘s permissive character. However, we think that the District Court‘s analysis does not go far enough, and that its reliance on DeShaney does not fully explain why Citizens cannot succeed here.
We begin our analysis with the premise that the right to medical privacy asserted by Citizens is legally cognizable under the Due Process Clause of the Fifth Amendment, although, as Citizens themselves concede, its “boundaries ... have not been exhaustively delineated.” (Appellants’ Br. at 12.)10 Whatever those boundaries may be, it is undisputed that a violation of a citizen‘s right to medical privacy rises to the level of a constitutional claim only when that violation can properly be ascribed to the government. The Constitution protects against state interference with fundamental rights. It only applies to restrict private behavior in limited circumstances. Because such circumstances are not present in this case, and because the “violations” of the right to medical privacy that Citizens have asserted, if they amount to violations of that right at all, occurred at the hands of private entities, the protections of the Due Process Clause of the Fifth Amendment are not implicated in this case. We will accordingly affirm the District Court‘s finding that the Secretary did not violate Citizens’ constitutional rights when he promulgated the Amended Rule.
At first glance, the posture of this case seems different from that of most state action cases. The issue of state action usually arises where plaintiffs assert that their rights have been violated by private parties who, they claim, are acting on behalf of the state. E.g., Jackson v. Metro. Edison Co., 419 U.S. 345 (1974) (customer suing private utility company for violation of procedural due process on the theory that the utility was a “state actor” by virtue of a state-granted monopoly and extensive state regulation). In this case, by contrast, the action that Citizens challenge—the promulgation of the Amended Rule by the Secretary—is clearly government conduct. As noted above, however, the injury that Citizens allege is that their “personal health information” is being “used and disclosed, without their permission and against their will” by third parties. (Appellants’ Br. at 2.) To support their claims, Citizens point to privacy notices that they received from private health care providers and pharmacies. See Citizens for Health, 2004 U.S. Dist. LEXIS 5745, at *27-28. Citizens did not challenge any use or disclosure by the Secretary himself, or urge that the third parties were somehow acting on the Secretary‘s behalf, before the District Court.12 The relevant question, then, is whether the Secretary, as a state actor, was sufficiently involved in producing the harm Citizens assert to satisfy the Constitution‘s state action requirement.
As noted above, the District Court touched on the state action issue when it applied DeShaney‘s holding that due process does not impose an affirmative obligation on the State to protect individuals’ interests in life, liberty, or property from harm inflicted by private actors. See 489 U.S. at 195. But the District Court‘s analysis in this respect was incomplete. Although the fundamental principle that due process protections apply only to prevent injury attributable to conduct of the State underlies the discussion in DeShaney, the Supreme Court‘s analysis in that case did not focus on “state action” as such. There, the Court was presented with a claim against a local government for its failure to prevent a father from physically abusing his son to the point of permanent injury where the local social services agency knew of the abuse but failed to remove the child from the father‘s custody. Id. at 191. Plaintiffs argued that the State was “categorically obligated” to protect the child from abuse and that, given this obligation, the State‘s failure to act was a proper basis for a due process challenge. Id. at 195. The Court‘s analysis thus sought to determine whether due process imposed a “duty” or “obligation” on the State to protect individuals from private harm, not “whether the State was sufficiently involved [in the privately caused harm] to treat that decisive conduct as state action.” Tarkanian, 488 U.S. at 192.
To answer this question, we must determine “whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity [-the private party-] so that the action of the latter may fairly be treated as that of the State itself.” Jackson, 419 U.S. at 351. Where, as here, plaintiff argues that the State has “authorized” or “empowered” a private entity to act in a way that directly brings about the alleged injury, our inquiry focuses on “whether the State provided a mantle of authority that enhanced the power of the harm-causing individual actor.” Tarkanian, 488 U.S. at 192. Unfortunately, there is no “infallible test” to employ in this analysis. Reitman v. Mulkey, 387 U.S. 369, 378 (1967). Rather, it is “`[o]nly by sifting facts and weighing circumstances’ on a case-by-case basis [that] a `nonobvious involvement of the State in private conduct [can] be attributed its true significance.‘” Id. (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961)).
The Supreme Court provided guidance as to what satisfies the Constitution‘s state action requirement in Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). In that case, the Court explained that actions challenged on constitutional grounds fall somewhere along a continuum, with direct action by the State on one side and action by a “private party not acting against a backdrop of state compulsion or involvement” on the other. Id. at 168. Whereas the former meets the state action requirement for constitutional claims, the latter does not (although it could form the basis for a claim on statutory or common law grounds, depending on the alleged violation). The Court further elaborated that, along this continuum, the enactment of a state law “requiring” violation of individual rights, and “enforcement” of such a law establish the requisite state action. Id. at 170. “[A] State is responsible for the discriminatory act of a private party when the State, by its law, has compelled the act” or when the State has “commanded” a particular result. Id. (emphasis added) (citing Peterson v. City of Greenville, 373 U.S. 244, 248 (1963); Robinson v. Florida, 378 U.S. 153 (1964); Lombard v. Louisiana, 373 U.S. 267 (1963); Shuttlesworth v. Birmingham, 373 U.S. 262 (1963)).
The first inquiry, then, is whether the Amended Rule can fairly be read to “require,” “compel,” or “command” routine use disclosures without consent. We conclude that it cannot. The fact that subsection (b) of the Rule expressly permits covered entities to obtain consent belies such an interpretation. See
Citizens argue that the Amended Rule‘s grant of “regulatory permission” to make the challenged uses and disclosures, see, e.g., 67 Fed.Reg. at 53,209, 53,211, 53,212 (discussing Amended Rule), indirectly provides the requisite “mantle of authority“. To demonstrate a link between the Amended Rule and private parties’ use and disclosure of Citizens’ health information without their consent, Citizens point to two sources: (1) changes in the privacy policies of covered entities, and (2) evidence that some entities have begun ignoring applicable state privacy laws. On the first point, Citizens have identified at least one covered entity that has adopted a blanket policy of refusing all requests for restrictions on uses and disclosures of health information since the promulgation of the Amended Rule.13 They further assert that some covered entities have simply ignored applicable, more restrictive, state laws in making such uses and disclosures.14
By way of analogy, assume that Congress were to pass legislation permitting private cinema operators, at their discretion, to search all moviegoers for any reason, without any showing of probable cause or reasonable suspicion. Although the Fourth Amendment would preclude the federal government from conducting such a search, private cinema operators are not bound by the Fourth Amendment, and absent any other law prohibiting it, private cinema operators were already “permitted” to conduct such a search before the new legislation took effect. To the extent that this new legislation changes the legal landscape at all, then, it only codifies a power that cinema operators had already. The codification does not transform the private exercise of the codified power into “state action.” Similarly, although the codification itself is clearly government action, it seems insufficient to endow a moviegoer‘s challenge to a search by a cinema operator with constitutional significance given that the codification has neither enhanced nor diminished the individual moviegoer‘s rights.
None of the cases that Citizens or amici cite supports the view that a government authorization of conduct that was already legally permissible satisfies the constitutional state action requirement. It is true that these cases find state action based on the enactment of statutes that permit private parties to infringe the constitutional rights of others.17 But the laws that the Supreme Court has struck down in these cases allowed private parties to take some action (usually discrimination based on race) where they would otherwise have been prohibited from doing so. In other words, the Court found that the state, by enacting these laws, had “empowered” private parties to act in ways that would have been prohibited but for the enactment of the law. As we explained above, that is not the case here.
The United States Supreme Court affirmed the judgment of the California Supreme Court. The Court rejected petitioners’ argument that the state court‘s reasoning was flawed because it meant that the mere repeal of a statute that prohibited private racial discrimination could be said to “authorize” or “encourage” discrimination simply because it permitted that which was formerly proscribed, pointing out that the challenged state action in case was not “the mere repeal” of prior anti-discrimination laws. Id. at 376. Rather, the offensive action was the state‘s authorization and “constitutionalization” (under the state constitution) of the previously forbidden private right to discriminate. Id. Consequently, the amendment had a much broader impact than the mere repeal of existing statutes:
Private discriminations in housing were now not only free from [the previously enacted anti-discrimination statutes] but they also enjoyed a far different status than was true before the passage of those statutes. The right to discriminate, including the right to discriminate on racial grounds, was now embodied in the State‘s basic charter, immune from legislative, executive, or judicial regulation at any level of the state government. Those practicing racial discriminations need no longer rely solely on their personal choice. They could now invoke express [state] constitutional authority, free from censure or interference of any kind from official sources.
Id. at 380-81 (emphasis added).18 In other words, the amendment was constitutionally offensive not only because it now permitted conduct that was previously prohibited, but also because it affirmatively protected such conduct under the state constitution.
The Reitman Court elaborated on this principle by referring to its ruling in Nixon v. Condon, 286 U.S. 73 (1932). It noted that, in Nixon,
the Court was faced with a statute empowering the executive committee of a political party to prescribe the qualifications of its members for voting or for other participation, but containing no directions with respect to the exercise of that power. This was authority which the committee otherwise might not have had and which was used by the committee to bar Negroes from voting in primary elections. Reposing this power in the executive committee was said to insinuate the State into the self-regulatory, decision-making scheme of the voluntary association; the exercise of the power was viewed as an expression of state authority contrary to the Fourteenth Amendment.
Reitman, 387 U.S. at 379 (discussing Nixon) (emphasis added). As in Reitman, then, the Nixon Court found that the enactment of the statute satisfied the state action requirement because the challenged law provided the committee with a power that it “otherwise might not have had.” Id. Because the Amended Rule does not endow covered entities with any power that they did not have otherwise, the action of the Secretary that Citizens challenge does not fit the Reitman / Nixon mold.
The fact that covered entities are construing the “may use” language as constituting a new federal seal of approval, and may be ignoring state laws regarding protections to be afforded to such information, is regrettable and disquieting. That routine requests for privacy are apparently being ignored by covered entities is even more unfortunate. But our task here is to determine the constitutionality of the Amended Rule, not the propriety of covered entities’ actions under state or common law. Because, for all of the reasons stated above, the covered entities’ actions that Citizens challenge do not implicate the federal government, we reject Citizens’ Fifth Amendment claim.
B. First Amendment Claim
Citizens’ First Amendment claim is that the Amended Rule infringes individuals’ right to confidential communications with health care practitioners, i.e., a right to refrain from public speech regarding private personal health information. Citizens argue that the effect of the Amended Rule is to chill speech between individuals and their health care practitioners because the possibility of nonconsensual disclosures makes individuals less likely to participate fully in diagnosis and treatment and more likely to be evasive and withhold important information. Further, because the Rule applies to “health information ... whether oral or recorded in any form or medium ...,”
We believe that a First Amendment claim is an ill-suited challenge to the Amended Rule. Cf. South Carolina Med. Ass‘n v. Thompson, 327 F.3d 346, 355 n. 4 (4th Cir.2003) (“We summarily dispense with appellants’ argument that the Privacy Rule will chill patients’ rights of free speech, as we find this claim to be without merit.“). The cases on which Citizens rely are not authoritative on the precise issue before us. See Bartnicki v. Vopper, 532 U.S. 514, 533 (2001) (suggesting that “the fear of public disclosure of private conversations might well have a chilling effect on private speech,” but ultimately holding that any such interest was outweighed in that case by the media‘s countervailing First Amendment interest in publishing truthful information of public concern); Jaffee v. Redmond, 518 U.S. 1, 11-12 (1996) (citing the “public interest” in confidential communications between a psychotherapist and her patient as justification for recognizing a psychotherapist-patient privilege in federal courts). And, more to the point, Citizens’ First Amendment claim fails on the same grounds as their Fifth Amendment claim: the potential “chilling” of patients’ rights to free speech derives not from any action of the government, but from the independent decisions of private parties with respect to the use and disclosure of individual health information. For all of the reasons enumerated above, the decisions of the private parties to use or disclose private health information in reliance on the Amended Rule, which may or may not “chill” expression between health care providers and their patients, does not implicate the government in a way that gives rise to a constitutional claim. We will therefore affirm the District Court‘s grant of summary judgment to the Secretary on Citizens’ First Amendment claim.
In claims based on HIPAA‘s statutory language, Citizens argue (1) that the Secretary exceeded the regulatory authority delegated by HIPAA because the Act only authorizes the Secretary to promulgate regulations that enhance privacy and (2) that the Amended Rule impermissibly retroactively rescinded individual rights created by the Original Rule and disturbed Citizens’ “settled expectations” in the privacy of their health information. We find the District Court‘s analysis of these statutory claims to be cogent. Citizens argue that the Secretary has eliminated their reasonable expectations of medical privacy retroactively and prospectively and that such action is inconsistent with Congress‘s intent in enacting HIPAA. However, Citizens’ argument that the controlling policy underlying HIPAA is medical privacy and that the Amended Rule wholly sacrifices this interest to covered entities’ interests in efficiency and flexibility ignores the Act‘s stated goals of “simplify[ing] the administration of health insurance,” HIPAA pmbl.,
We also agree with the District Court‘s finding that the Amended Rule does not retroactively eliminate rights that Citizens enjoyed under the Original Rule or under various laws or standards of practice that existed before the Amended Rule went into effect. Because the Original Rule was amended before its compliance date, “[c]overed entities were never under a legal obligation to comply with the Original Rule‘s consent requirement.” Id. at *45-46. Citizens, therefore, never enjoyed any rights under the Original Rule at all. Nor does the Amended Rule retroactively eliminate Citizens’ reasonable expectations based on state law, standards of medical ethics and established standards of practice because the Amended Rule does not disturb any preexisting, “more stringent” state law privacy rights. See id. at *45-46. See also Standards for Privacy of Individually Identifiable Health Information, 67 Fed.Reg. 53,182, 53,212 (Aug. 14, 2002) (“State laws that are more stringent [than the Privacy Rule] remain in place. In order not to interfere with such laws and ethical standards, this Rule permits covered entities to obtain consent. Nor is the Privacy Rule intended to serve as a ‘best practices’ standard. Thus, professional standards that are more protective of privacy retain their vitality.” (emphasis added)). Accordingly, we reject Citizens’ second HIPPA claim as well, and will affirm the grant of summary judgment to the Secretary on these claims.
D. APA Claims
Lastly, Citizens challenge the rulemaking process under the APA, contending that (1) the Secretary‘s rulemaking was arbitrary and capricious, in violation of
We also reject Citizens’ claim that the Secretary acted arbitrarily and capriciously in promulgating the Amended Rule. Citizens argue that the Secretary acted arbitrarily and capriciously in promulgating the Amended Rule by improperly reversing a “settled course of behavior” established in the Original Rule and adopting a policy that he had previously rejected. When an agency rejects a “settled course of behavior,” however, it need only supply a “reasoned analysis” for the change to overcome any presumption that the settled rule best carries out the policies committed to the agency by Congress. Motor Vehicle Mfrs. Ass‘n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41-42 (1983) (quoting Atchison, T. & S.F.R. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 807-08 (1973)). Such an analysis requires the agency to “examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.‘” Id. at 43 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
Here, the Secretary examined the relevant data, see Citizens for Health, 2004 U.S. Dist. LEXIS 5745, at *39-41, and gave adequate consideration to the large volume of public comments that HHS received during the rulemaking process. Id. at *41-42. The Secretary considered other alternatives and explained why they were unworkable. Id. at *35-38. The Secretary also considered Congress‘s dual goals in devising the privacy standards, i.e., protecting the confidentiality of personal health information and improving the efficiency and effectiveness of the national health care system. Id. at *41-42.
In sum, the Secretary‘s decision to respond to the unintended negative effects and administrative burdens of the Original Rule by rescinding the consent requirement for routine uses and implementing more stringent notice requirements was explained in a detailed analysis that rationally connected the decision to the facts. “Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. at *43.
The Secretary has not failed in any of these respects, and, hence, we agree with the District Court‘s analysis and conclusion that the Secretary‘s decision was reasonable given the findings and that the Secretary did not act arbitrarily and capriciously in violation of the APA. Accordingly, we will affirm the grant of summary judgment to the Secretary on these claims.V. Conclusion
For the reasons set forth above, we will AFFIRM the judgment of the District Court.
Notes
A regulation promulgated under paragraph (1) shall not supercede a contrary provision of State law, if the provision of State law imposes requirements, standards, or implementation specifications that are more stringent than the requirements, standards, or implementation specifications imposed under the regulation.
- Proposed Original Rule: 64 Fed.Reg. 59,918 (Nov. 3, 1999);
- Original Rule: 65 Fed.Reg. 82,462 (Dec. 28, 2000);
- Proposed Amended Rule: 67 Fed.Reg. 14,776 (Mar. 27, 2002);
- Amended Rule: 67 Fed.Reg. 53,182 (Aug. 14, 2002).
- A health plan.
- A health care clearinghouse.
- A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter.
The regulations define the following terms with the following meanings:
”More stringent” means, in the context of a comparison of a provision of State law and a standard, requirement, or implementation specification adopted under [the Privacy Rule], a State law that meets one or more of the following criteria:
(1) With respect to a use or disclosure, the law prohibits or restricts a use or disclosure in circumstances under which such use or disclosure otherwise would be permitted under this subchapter, except if the disclosure is:
(i) Required by the Secretary in connection with determining whether a covered entity is in compliance with this subchapter; or
(ii) To the individual who is the subject of the individually identifiable health information.
(2) With respect to the rights of an individual, who is the subject of the individually identifiable health information, regarding access to or amendment of individually identifiable health information, permits greater rights of access or amendment, as applicable.
(3) With respect to information to be provided to an individual who is the subject of the individually identifiable health information about a use, a disclosure, rights, and remedies, provides the greater amount of information.
(4) With respect to the form, substance, or the need for express legal permission from an individual, who is the subject of the individually identifiable health information, for use or disclosure of individually identifiable health information, provides requirements that narrow the scope or duration, increase the privacy protections afforded (such as by expanding the criteria for), or reduce the coercive effect of the circumstances surrounding the express legal permission, as applicable.
(5) With respect to recordkeeping or requirements relating to accounting of disclosures, provides for the retention or reporting of more detailed information or for a longer duration.
(6) With respect to any other matter, provides greater privacy protection for the individual who is the subject of the individually identifiable health information.
”Relates to the privacy of individually identifiable health information” means, with respect to a State law, that the State law has the specific purpose of protecting the privacy of health information or affects the privacy of health information in a direct, clear, and substantial way. ”State law” means a constitution, statute, regulation, rule, common law, or other State action having the force and effect of law.
To satisfy Article III‘s justiciability requirement, “plaintiffs must demonstrate that they have suffered an injury-in-fact, that the injury is causally connected and traceable to an action of the defendant, and that it is redressable.” The Pitt News v. Fisher, 215 F.3d 354, 359 (3d Cir.2000) (citing Doe v. Nat‘l Bd. of Med. Exam‘rs, 199 F.3d 146, 152-53 (3d Cir.1999)). To support his or her standing at the summary judgment stage, “plaintiff ... must `set forth’ by affidavit or other evidence `specific facts’ ... which for purposes of the summary judgment motion will be taken to be true.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992), 112 S.Ct. 2130, 119 L.Ed.2d 351 (quoting
With respect to the “traceability” prong of the justiciability requirement, we conclude that Citizens’ alleged injury is traceable to the promulgation of the Privacy Rule for two reasons. First, notices that plaintiffs received from covered entities such as Kaiser Permanente, Eckerd Drugs and Genovese Drugs, and Blue Cross/Blue Shield of Delaware explain the entities’ intent to use and disclose plaintiffs’ health information without consent (i.e., the sources of the alleged injury at the heart of this case) using language lifted directly from the Privacy Rule itself. Second, plaintiff‘s statement in her affidavit that her ability to restrict the use and disclosure of her health information changed after April 14, 2003, the Privacy Rule‘s effective date, Citizens for Health, 2004 U.S. Dist. LEXIS 5745, at *28-30, implies that the Rule is a “cause in fact” of her alleged injury.
We emphasize that, as justiciability is a “threshold” matter, The Pitt News, 215 F.3d at 360, our analysis for these purposes is distinct from our analysis of the merits of plaintiffs’ claims. As a result, our determination that Citizens’ alleged injuries are “fairly traceable” to the Secretary‘s promulgation of the Privacy Rule and that rescission of the Rule is likely to redress plaintiffs’ alleged injuries in no way amounts to a determination that the decisions of private entities to disclose or use plaintiffs’ health care information without their consent are legally attributable to the federal government in such a way as to constitute state action. See id. at 361 n. 4. In fact, we reach the opposite conclusion below.
Citizens noted in their Reply Brief:
As Plaintiffs noted at oral argument before the District Court, covered entities in Pennsylvania and Delaware are using and disclosing Plaintiffs’ health information without consent under the authority granted by the Amended Rule despite a Delaware law that prohibits such disclosures without “informed consent of the individual” and a Pennsylvania law that deems it “unprofessional conduct” and a licensure violation for a licensed health professional to “depart from or fail[ ] to conform to an ethical or quality standard of the profession.”
(Appellants’ Reply Br. at 6 n.7 (citations omitted).) We note that, to the extent that these contentions are accurate, Citizens are free to pursue these covered entities directly under state law. That private entities are violating Citizens’ state statutory rights does not in any way imply that the Secretary has violated Citizens’ constitutional rights.
The Court reiterated this reasoning at the conclusion of the majority opinion:
Here we are dealing with a provision which does not just repeal an existing law forbidding private racial discriminations. [The amendment] was intended to authorize, and does authorize, racial discrimination in the housing market. The right to discriminate is now one of the basic policies of the State. The California Supreme Court believes that the [amendment] will significantly encourage and involve the State in private discriminations. We have been presented with no persuasive considerations indicating that these judgments should be overturned.
Reitman, 387 U.S. at 380-81, 87 S.Ct. 1627