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Dec. 7, 2023 |  By: Annelise Hanshaw - Missouri Independent

Missouri AG alleges federal involvement in Washington University investigation

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By Annelise Hanshaw - Missouri Independent

Missouri Attorney General Andrew Bailey alleged in a counterclaim filed Thursday that the federal government may be involved in Washington University’s refusal to give his office access to patient records. 

Bailey’s request for records is part of an investigation into the university’s Transgender Center.

The counterclaim points to a perceived change in the university’s requests and compliance with the attorney general’s demands but does not appear to have specific evidence of federal obtrusion.

“We will not let Joe Biden and his federal bureaucrats interfere with our investigation into the pediatric transgender clinic,” Bailey  said in a statement. “These documents are critical to exposing that children were subject to irreversible, life-altering procedures without full and informed parental consent.”

His counterclaim comes after Washington University filed a lawsuit Monday asking a St. Louis Circuit Court judge to narrow Bailey’s civil investigative demands. The university argued Bailey lacks the authority to ask for private health information.

Representing the attorney general’s office, Solicitor General Joshua Divine wrote that Washington University may be facing outside influence.

“The state has reason to believe that the federal government has quietly pressured Washington University not to comply with this lawful, critical investigation, and has used HIPAA as its leverage for that pressure,” he wrote in the counterclaim.

Divine asks for a court order ruling the Health Information Portability and Accountability Act (HIPAA) “does not prohibit compliance with the (civil investigative demands).”

The attorney general’s office submitted numerous exhibits Thursday, sealed from the public, showing the communication between the state and the university. The counterclaim alleges Washington University initially agreed to grant access to its digital patient records but later became less compliant, citing HIPAA.

Divine repeatedly mentions documents initially sent to the attorney general on April 7. The first time the university sent the requested information, the attorney general’s office did not download the documents before the shared link expired, the counterclaim says.

Then, after reminders to re-send the records, Divine wrote, the office received a file they could not open.

During a Sept. 1 teleconference, Washington University’s counsel said the records would be sent again but with protected health information redacted.

“Which he had never done in any prior production and had never suggested was necessary,” Divine wrote, referring to redactions.

He described the response as “heavily censored, with redactions often spanning full paragraphs or entire pages of responsive and relevant material.”

This request is an example of what Divine describes as the university “changing its position,” but a main battle in the litigation is view-only access to the software that stores all patients’ records.

Washington University argued in the initial lawsuit that wide-ranging access is not permitted under the Missouri Merchandising Practices Act, a consumer-protection law the attorney general is using to investigate Washington University Transgender Center.

Divine argues that the investigation is looking into deception in the sale or advertisement of health care, and therefore, within the MMPA’s bounds.

“Inducing a person to purchase gender transition services through unfair or deceptive practices leads to life-altering physical consequences,” the counterclaim says.

The investigation, he wrote, is looking into allegations made by former employee Jamie Reed. These allegations include that the Transgender Center was “boosting patient volume by falsely advertising compliance with [the] Endocrine Society, World Professional Association for Transgender Health (WPATH) and similar group guidelines while in fact sharply deviating from those guidelines.”

Washington University has vehemently denied Reed’s accusations and argues the attorney general does not have the authority to investigate medical decision making, only sales and advertising.

But the attorney general’s office “denies that the MMPA forbids investigating medical malpractice issues.”

“With respect to the attorney general, the consumer-protection statute grants extraordinarily broad authority,” Divine wrote.

In April, Bailey used the MMPA to issue an emergency rule restricting both kids’ and adults’ access to gender-affirming care. The ACLU of Missouri filed to stop the rule’s implementation, and a judge granted a temporary injunction.

Bailey ultimately withdrew the rule after the state’s legislature passed a ban on gender-affirming care for transgender youth.

Washington University stopped treating minors for gender dysphoria in September, citing concerns about the new law’s provision placing more liability on physicians than other treatments.