Eastern District Court of Appeals says Planned Parenthood must produce ‘de-identified’ medical records or otherwise cite exemptions
BY: ANNELISE HANSHAW
Missouri Independent
Planned Parenthood Great Rivers must turn over documents about gender-affirming care to Missouri Attorney General Andrew Bailey, an appeals court ruled Tuesday morning.
Bailey has been looking into the use of cross-sex hormones, puberty blockers and gender-transition surgeries for minors in the state since March 2023, when a former case worker at the Washington University Transgender Center claimed the center rushed children into treatment.
As part of his probe into Washington University and “other providers,” Bailey’s office sent civil investigative demands to Children’s Mercy Hospital in Kansas City, Washington University in St. Louis and the state’s two branches of Planned Parenthood — all of which have fought to protect patient information.
Planned Parenthood Great Rivers, which oversees clinics in St. Louis and southwest Missouri, refused to turn over documents to Bailey, challenging his request as a misuse of Missouri’s consumer protection law and a violation of federal patient privacy law.
A St. Louis Circuit Court judge ruled last year that the Missouri Merchandising Practices Act allows the attorney general to investigate deceptive medical practices but doesn’t supersede HIPAA.
HIPAA, or the Health Insurance Portability and Accountability Act, protects patients from providers disclosing their personally identifiable health information.
For Bailey to get certain records from Planned Parenthood, Circuit Court Judge Michael F. Stelzer ruled in April of last year, patients would have to sign away their HIPAA rights.
But Tuesday’s judgment, written by Judge Rebeca Navarro-McKelvey of Missouri’s Eastern District Court of Appeals, said HIPAA doesn’t prevent Planned Parenthood from providing de-identified records. Additionally, Planned Parenthood didn’t provide the attorney general a privilege log, or a list of exceptions to Bailey’s requests, to assess each claim.
A Western District Court of Appeals ruling filed in April against Missouri’s other Planned Parenthood affiliate also took issue with the lack of a privilege log.
In both cases, the appellate courts rejected the notion that Planned Parenthood was exempt from the entire investigative demand, but further court proceedings can assess whether some of the attorney general’s 54 requests are protected from disclosure.
“Crucially, a blanket HIPAA-based objection does not make the CID unenforceable,” Navarro-McKelvey wrote in Tuesday’s ruling. “As the burden is on (Planned Parenthood Great Rivers) as the covered entity to comply with HIPAA when responding to subpoenas.”
Planned Parenthood’s attorney, Matthew Eddy, argued the opposite in a circuit court hearing last June, saying the Attorney General’s Office must prove exceptions to HIPAA in its request.
The Eastern District Court of Appeals will soon hear patient-privacy arguments in a separate lawsuit between Bailey and Washington University. The case’s arguments in circuit court established that unredacted patient information was exempt from Bailey’s demands and some data was irrelevant to his search.
Among his requests to Washington University, Bailey’s office asked for “access to all electronic health records of clients.”
Bailey appealed that decision, saying his access to the information was “inevitable” under state law.
“While we are disappointed with the court’s decision, we are evaluating our next steps as this is just another political attack against the bodily autonomy and rights of transgender and gender-nonconforming Missourians,” said Margot Riphagen, president and CEO Planned Parenthood Great Rivers. “As a trusted health care provider, Planned Parenthood Great Rivers will continue to support our gender affirming care patients across the St. Louis region and Missouri Ozarks while ensuring our patients’ health information remains secure and protected.”