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June 19, 2024St. Louis | By: Annelise Hanshaw - Missouri Independent
By Annelise Hanshaw - Missouri Independent
ST. LOUIS — A circuit court judge heard arguments Monday over whether the Missouri attorney general’s efforts to access medical records of transgender youth violate privacy protections.
Monday’s hearing was convened at the request of Bailey in the hopes that the court would amend a previous order that requires patients to waive HIPAA rights before their medical records could be shared. If they don’t waive HIPAA, their documents would be exempt from the attorney general’s request for medical records.
HIPAA, which stands for the Health Insurance Portability and Accountability Act, protects patients from their providers disclosing their personally identifiable health information.
St. Louis Circuit Court Judge Joseph Whyte did not immediately rule following the hearing. Richard Muniz, interim president and CEO of Planned Parenthood Planned Parenthood of the St. Louis Region and Southwest Missouri, said if the decision is unfavorable, his organization will appeal.
“Our commitment to our patients is that we will fight this as long as we need to,” Muniz told The Independent. “Today, we’ve already signaled that we are going to appeal because we think that we shouldn’t have to turn over documents, especially patient records, but we shouldn’t have to partake in this investigation at all.”
Bailey launched his investigation in March 2023 looking into gender-affirming care of minors after the affidavit of Jamie Reed, who worked at Washington University’s adolescent Transgender Center. In April, another circuit court judge ruled that Bailey may continue his investigation — adding that patients must waive HIPAA rights before their private health information could be shared.
Children’s Mercy in Kansas City, Washington University and Planned Parenthood Great Plains are also arguing against the attorney general’s civil investigative demands.
The April decision, beyond giving patients the ability to protect their medical records, granted Bailey power to investigate Planned Parenthood under the Missouri Merchandising Practices Act, a state law that allows the attorney general’s office to investigate deceptive marketing practices.
Matthew Eddy, an attorney representing Planned Parenthood said during his arguments Monday that the attorney general’s authority under the Missouri Merchandising Practices Act has yet to be fully litigated.
Health care providers are fearful of what the attorney general might do with more information. Prior reporting by The Independent revealed Bailey’s use of the Division of Professional Registration, which is investigating therapists as a result of a complaint from his office.
After the attorney general’s office received a list of minor patients that received care at the Washington University Transgender Center and other documents, therapists and social workers that had written letters of support for patients to go to the Transgender Center had their licenses at risk. As of early May, 16 of 57 cases were still open.
Deputy Solicitor General Sam Freeland, representing the attorney general, argued Monday that a federal regulation allows medical records to be released when ordered by the court. He told the judge this exception was “not discussed by the plaintiff.”
“HIPAA has not barred the disclosure of the documents in question,” Freeland argued.
He said Planned Parenthood had the burden of proof to show that HIPAA covers the documents.
Eddy this was “simply not correct.”
“Planned Parenthood has proven the general rule that HIPAA protects disclosure,” he said. “The burden is on the respondent to show that the exception applies.”
Eddy further attacked the premise of Bailey’s investigation, which Freeland argued was not on the table Monday.
He said the attorney general’s civil investigative demands, which Eddy said were titled as an investigation into the Washington University Transgender Center, “had no allegations as to Planned Parenthood’s conduct.”
“He can’t point to a single complaint from a patient, a patient’s parent,” Eddy said.
Eddy said the attorney general “had 54 incredibly broad requests for information.”
“Included in the requests are information that would be deeply sensitive to transgender minors,” he told the judge.
Muniz told reporters one of the requests was for “any document that mentions TikTok,” calling the investigation a “sprawling phishing expedition.”
In press releases, Bailey has expressed a belief that all gender-affirming medical providers are connected.
“I launched this investigation to obtain the truth about how this clandestine network of clinics subjected children to puberty blockers and irreversible surgery, often without parental consent,” he said in a statement following the hearing Monday. “We are moving forward undeterred with our investigation into Planned Parenthood. I will not stop until all bad actors are held accountable.”
Muniz said Planned Parenthood does not have a formal relationship with Washington University, which was the focus of Reed’s affidavit and the beginning of Bailey’s investigation.
Supporters of Planned Parenthood rallied before the hearing, calling the investigation a political attack.
“(Bailey) only wants (the records) so he can politicize gender affirming care and to put a target on transgender and gender-non-conforming patients,” Margot Riphagen, Planned Parenthood St. Louis’s vice president of external affairs, said during the rally.
Katy Erker-Lynch, executive director of LGBTQ advocacy organization PROMO, called the attorney general’s actions “scary.”
“He has pushed credentialing committees of social workers, professional counselors and family and marital therapists to investigate every single provider on the eastern side of the state that has offered a letter of support for a trans or gender expansive kid to receive care,” she said, referencing a Division of Professional Registration investigation that stemmed from the AG’s complaint.
Around 40 people attended the rally, filling the courtroom until a small group were standing in the back. Most wore t-shirts with phrases like “protect trans kids” or “I fight with Planned Parenthood” and filed into the seats behind Planned Parenthood’s lawyers before sitting on the opposing side.
“Thank you,” a few people told Eddy as they walked out of the St. Louis courtroom.
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