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July 14, 2024 | By: Annelise Hanshaw - Missouri Independent
By Annelise Hanshaw - Missouri Independent
A St. Louis judge on Friday determined Missouri Attorney General Andrew Bailey has no right to access unredacted private health information of transgender children treated at the Washington University Transgender Center at St. Louis Children’s Hospital.
St. Louis Circuit Court Judge Joseph Whyte ruled that Washington University does not have to provide the unredacted medical records sought by the attorney general’s office as part of his investigation into the clinic’s practices.
Whyte found that the health information sought in Bailey’s demands is protected, and the data is not relevant to an investigation under the Missouri Merchandising Practices Act, which is the state’s consumer protection law.
A third layer of protection for the information, the judge ruled, is the Health Information Portability and Accountability Act, or HIPAA, which prohibits the disclosure of personal health information without authorization.
The attorney general’s demands “are not specific and limited in scope to the extent reasonably practicable in light of the purpose for which the information is sought, and respondent has not shown that de-identified information could not be reasonably used for the purpose for which it is sought,” Whyte wrote.
Bailey began looking into gender-affirming care at the Washington University Transgender Center in March 2023 after the center’s former case manager Jamie Reed provided an affidavit alleging rushed treatment.
The attorney general’s office sent civil investigative demands, which are similar to subpoenas, for health records to Washington University and other providers of gender-affirming care to minors, and four facilities filed suit against his requests for information.
Washington University, according to Friday’s ruling, responded to Bailey’s demand and gave him redacted records.
One of Bailey’s demands was for the university to, “identify all clients to whom you have provided your services. For each client, describe your services, the dates you provided your services, the amounts clients, their insurance or other third-party payors paid for these services and any contracts related to these services.”
The attorney general’s office also wanted “access to all electronic health records of clients,” according to the judgment.
Bailey said the redacted records were insufficient and asked the court to force Washington University to produce the documents in full. His reasoning for needing the information, though, was outside the bounds of the Missouri Merchandising Practices Act, Whyte determined.
Whyte recalled the attorney general arguing that he was looking into fraudulent billing of insurance and alleged that redactions removed communications about “red flag tracking” and patients who had discontinued treatment. That wasn’t a sufficient argument, Whyte ruled.
The judge wrote that the Missouri Merchandising Practices Act does not require “blind obedience to the attorney general’s civil investigative demands,” noting one section of the law that specifically exempts privileged material.
Bailey plans to appeal the order.
“There is no fight more important than the fight to make Missouri the safest state in the nation for children,” he said in a statement to The Independent. “My team remains undeterred in our quest to protect children. No stone will be left unturned in these investigations.”
Whyte is also presiding over a similar case involving demands for records from the St. Louis-based branch of Planned Parenthood, though in that case no records have been turned over to the attorney general at all.
Two other cases over Bailey’s access to medical records are playing out across the state in Jackson County, where Circuit Court Judge Joel Fahnestock ordered Kansas City’s Planned Parenthood organization and Children’s Mercy Hospital to produce requested documents
Planned Parenthood appealed in February, and the judge’s order is placed on hold until after appeal. Children’s Mercy did not appeal.
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