Cases Address Records, Health Insurance

— Lyn Stoesen, News Staff


NASW recently joined three friend-of-the-court briefs that address the rights of a medical board to obtain the records of a psychiatrist's patients, the parameters of a state children's health insurance program and protection from employer retaliation in a sexual harassment investigation.

Psychiatric records

NASW and its Maryland Chapter have joined a brief in a Maryland Court of Appeals for the case Maryland State Board of Physicians v. Eist, which addresses the scope of the medical board's right to obtain the confidential records of a psychiatrist's patient based on a licensure complaint filed by the patient's estranged husband while the couple was engaged in a child custody battle.

In the case, the medical board demanded that Harold Eist turn over the records after the woman's husband filed charges with the board that Eist failed to meet standards of care. Eist maintained that complying with the demand posed a serious ethical dilemma. Eist asked the board for guidance, but it fined him $5,000 for failing to meet its deadline for releasing the records and issued a reprimand.

A Montgomery County Circuit Court ordered the reprimand against Eist rescinded and all charges dismissed. After additional proceedings, the case was appealed again and brought to the Court of Special Appeals of Maryland in 2007; NASW filed a brief in that forum.

The brief in the pending high court appeal argues that the medical board's "absolutist compelled-disclosure policy will impair or destroy the 'atmosphere of confidence and trust' that is essential for effective psychotherapy."

According to the brief, "The board's policy of automatic compelled disclosure is in conflict with the patients' constitutional right to health information privacy and standards for the ethical practice of psychiatry." It notes the essential nature of the right to privacy for effective psychotherapy, that standards for ethical practice require protection of the right to privacy and that the right to privacy for sensitive health information is protected by the Constitution.


NASW and its New Jersey Chapter have joined a brief in the case State of New Jersey v. U.S. Department of Health and Human Services that defends New Jersey's State Child Health Insurance Plan (SCHIP) against Centers for Medicare and Medicaid Services (CMS) requirements that it alter the program dramatically.

CMS requires states that have amended their SCHIP eligibility to 250 percent of the federal poverty line by August 2008 to amend their plans in several respects and to make assurance to CMS about their programs. New Jersey expanded its SCHIP eligibility to 350 percent in 1999 with CMS approval.

The brief argues that "the CMS letter constitutes a sudden and illegal reversal of long-standing federal policy and CMS's prior approvals of the New Jersey SCHIP program; if allowed to stand, it will have a real, immediate and detrimental impact on New Jersey's SCHIP program and on the children it serves, undermining advances made in New Jersey and resulting in the denial of coverage to thousands of low-income children who are currently and properly insured under the program."

The Department of Health and Human Services has argued that the case should be dismissed. The friend-of-the-court brief counters that the United States District Court has jurisdiction to hear the case and that CMS "erred as a matter of law by issuing binding mandatory rules without following the notice and commend procedures required by the Administrative Procedures Act."

The brief argues that the CMS letter will have an immediate effect on the state's waiting period for SCHIP enrollment by requiring a one-year minimum period versus the state's three-month policy. It also notes that the letter requires assurances of a 95 percent enrollment rate for children living under 200 percent of the federal poverty line that is likely unattainable and that higher premiums resulting from CMS cost-sharing requirements will depress participation in the program.

"The CMS letter is an unlawfully promulgated binding rule that has an immediate and substantial impact on the state of New Jersey, its SCHIP plan and the children insured under that plan," the brief concludes. "The issues raised by this suit are overwhelmingly legal, and the affected parties would benefit from immediate review."

Employer retaliation

In a case before the United States Supreme Court, NASW has joined with other amici curiae to argue that the anti-retaliation provision of Title VII of the Civil Rights Act protects workers from dismissal because of cooperation with an employer's internal investigation of sexual harassment.

The case, Crawford vs. Tennessee, involves Vicky Crawford, who was fired after 30 years of employment with the Metropolitan Government of Nashville and Davidson County months after giving evidence about sexual harassment by a senior manager in an employer-initiated investigation of his conduct. A circuit court ruling found that Crawford had no protection against retaliation.

The brief argues that "to be effective, Title VII's prohibition against retaliation must protect employees like Vicky Crawford who participate in their employers' internal investigations of sexual harassment and other discrimination."

The brief makes three arguments:

  1. Sexual harassment is pervasive and costly;
  2. sexual harassment is significantly underreported; and
  3. the circuit court ruling should be reversed because it will discourage efforts to eliminate sexual harassment.

Get more information from the Amicus Brief Database.