Military-Veterans Advocacy Secures Strategic Victory In Privacy Rule Lawsuit

It's official. The VA produced a declaration to the Court in an emergency hearing for a restraining order showing the VA will not move forward with health information sharing using Health Information Exchanges under its new privacy rule until January 2020. Internal memoranda show the agency initially planned to roll out its new sharing of health information as early as November 2019, after implementing its changes outlined in the new privacy rules effective September 30, 2019.

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Military-Veterans Advocacy Privacy Lawsuit

Military-Veterans Advocacy (MVA) secured a strategic victory yesterday by securing a written declaration from VA that it formally will not start information sharing until January 2020. The agency’s decision to produce the declaration with the 2020 timeframe allows time to challenge the privacy rule changes before the agency takes action on its new protocol.

At an emergency hearing yesterday on a temporary restraining order to prevent the agency from moving forward with its automatic health information-sharing program, counsel for the government presented a declaration from VA that the agency will not share information until January 2020. This was a strategic victory for MVA since the goal of the motion was to stop the agency from sharing health information using the third party Health Information Exchanges without consent immediately.

The organization and some veterans are challenging the Constitutionality of the agency’s recent changes to its privacy rules.

John Wells, Director of Litigation for MVA, is spearheading the litigation.

About the TRO outcome, in an interview with Connecting Vets, Wells stated VA produced a “declaration” saying the department “would not disclose any veterans’ information until Jan. 1, 2020.”

“[Veterans] are definitely afraid of that information being shared,” Wells said. “That’s private information and we have no way of knowing how it will be secured.”

“What should happen is the VA … allows time for everyone to comment,” he said. “If they do that, then it gives us a chance to understand the program and allow veterans the opportunity to make an intelligent decision about what they want to disclose.”

According to Connecting Vets, VA did not immediately respond to its request for more information on exactly who could potentially access veterans’ healthcare information and what measures VA has taken to secure that data.

According to the Docket:

MINUTE ORDER finding as moot Plaintiffs’ Motion for Temporary Restraining Order. In light of the agency declaration read by government counsel on the record at today’s motions hearing indicating that the Department of Veterans Affairs will not transfer any medical records electronically to third−party healthcare providers through the Veterans Health Information Exchange under the MISSION Act until January 2020, and Plaintiffs’ counsel’s agreement that the declaration eliminates the need for emergency relief through a temporary restraining order, it is hereby ORDERED that Plaintiffs’ Motion for Temporary Restraining Order is DENIED as moot. Signed by Judge Christopher R. Cooper, as motions judge, on 10/3/19. (lccrc2) (Entered:10/03/2019)

Notices Sent To Veterans

Initially, VA sent out notices last week that its new privacy rules, effective September 30, 2019, just days later, would include Health Information Exchange sharing unless veterans opted out using a specified form. Language on the agency’s website suggested veterans would be opted in automatically without their consent starting October 1, 2019, unless they submitted an opt out form.

Many veterans report they have yet to receive a notice from the agency.

The opt out form currently being used by the agency, Form 10-10164, expressly opts a veteran into the system in the event of an emergency if a veteran signs it causing some confusion about the precise nature and title of the form.

The agency reportedly planned to start sharing without consent in November 2019 pursuant implementation of the September 30 changes. That start date for health information sharing is now moved back, officially, to sometime in January 2020.

Pushback

Pushback from the veteran community about the changes that included the filing of a lawsuit by Military-Veterans Advocacy preceded the agency’s issuance of a formal declaration that its opt-out procedures would officially start in January 2020.

Veterans generally have expressed concern about the agency’s sudden rollout of the privacy rule change that includes using a third-party Health Information Exchange inside of the 30-day timeframe outlined by the Privacy Act.

The exchange is managed by Healtheway, Inc, on contract. That company operates as dba as The Sequoia Project since 2015.

The agency has shared health records directly with private providers in the community for years prior to the privacy rules now mandating the use of a Health Information Exchange as the conduit for transmitting the records.

Specific details about the internal processing procedures including opt-out adjudication referenced in the new privacy rules have not yet been published publicly.

Coverage Of Health Information Sharing Program

Here is our coverage of the matter to this point:

  1. VA To Share Health Information Without Consent
  2. 4 Things You Need To Know About New Privacy Rules
  3. Lawsuit Filed To Stop VA’s New Privacy Rules

The new privacy policy changes have not received wide coverage from traditional news media sources relied on by veterans such as Military Times, Military.com, or Stars & Stripes.

The newer news outlet Connecting Vets did cover the outcome of the hearing yesterday, “VA to hold off on sharing medical records after veterans’ lawsuit says it violated privacy.”

As more veterans reach out to traditional media outlets, additional coverage may follow.

Below in italics is an email notice sent yesterday by the agency apparently issued shortly after the TRO hearing’s resolution.

Email Notice From Bay Pines VA Medical Center

Dear Veteran,

You should have received a letter from VA recently informing you of the Veterans Health Information Exchange (VHIE). VA will not begin opting Veterans into health information sharing until January 2020. You have until January 2020 to opt out, and you can opt out any time after that too.

With the VHIE, Veterans will no longer need to provide VA a signed, written authorization for VA to electronically share their VA health information with participating community providers for treatment purposes. Through the VHIE, VA may now electronically share this health information for treatment purposes as permitted by federal privacy laws. By law, Veterans are not permitted to opt out of Department of Defense (DoD) sharing.

The intent of the VHIE is to share the right information at the right time with providers in order to help Veterans and their health care team make the best decisions. This instant exchange of information can dramatically improve patient safety, especially during emergency situations, and overall improve coordination and continuity of care for Veterans who seek care in the community. The websites explains everything, to include how Veterans can opt out: https://www.va.gov/vler/    

Sharing health information gives community care providers a more complete view of a Veteran’s health record, which benefits Veterans by:

  • Helping Veterans make the best decisions about their health with their health care team
  • Improving continuity and coordination of care for Veterans who seek care with both the VA and community care providers
  • Improving patient safety in cases of emergencies where a family member is not present to share a Veteran’s necessary health information
  • Helping VA identify Veterans who may be at higher risk for drug interactions and provider overprescribing early

Please watch this short video or read our press release here for more information and specifics on how to opt out if you are enrolled in care within the Bay Pines VA Healthcare System.

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24 Comments

  1. Ben-A BIG THANK YOU to you and your achievement. I know all veterans feel the same way. Never give up and NEVER give in.

  2. Quoted: “Sharing health information gives community care providers a more complete view of a Veteran’s health record, which benefits Veterans by:”

    Their bullet points are BS:
    Best decisions? Horse poop, not ours or our needs or have had for years then dumped. Just what’s allowed or can be given by a MD, or not, due to their own rules and regs.

    Continuity? More hype, propaganda and BS. Sounds great gimme a cup of that Kool-Aid please. Continuity in retaliation maybe. Well, for sure. Oops sorry Mr. Patient our computers do not compute, systems down, not connected to those other systems, not found in our system. Sorry. I’ve got a bridge for sale today, cheap, today only, cash only.

    Patient safety? More BS. How many out there have family, nuclear relations, or may know our personal health info or needs? If you have a DNR you’re just shoved in a room to lie in your own filth to die alone anyway, so who cares? Staff don’t give a hoot, well trained college kiddies and staff. If a target.. may God bless cause all others know or will know is that real “hate.” People need to stop watching medical shows on TV, believing reports, what the VA claims, or crap on local news.

    “Helping VA identify Veterans who may be at higher risk for drug interactions and provider overprescribing early”

    More BS and propaganda. Most don’t seem to care about “interactions,” side affects, etc. Most just love to push their pills or head meds for chronic pain… that don’t work, dismiss what does, etc. Tell them you can’t use Gabapentin, tried it with nasty side-effects so they prescribe Neurontin instead… for one example? Ahh “over-prescribing.” That need, ordered, demanded, we sign release forms of all kinds for back-ground checks, those pharmacy checks over what meds we’ve had filled over the years, what’s used… locally, state-wide…. and beyond.

    Or to question us why we may not have had prescriptions filled in years past, and such? Like Tramadol. Really? Say what? “over prescribing,” ya all go that far back huh, or about what is called possible “doctor searching/seeking,” “drug seeking,” don’t dare have issues trying to find a care giver because of games/retaliation/community, med care professional gaming, hatred due to ID poltiics, etc. You know I had out of state care back in 1992?!!! Don’t they all play the word games and ways of shit looking or sounding like Shinola and a good thing? Opt out my broad ass. Funny.

    DoD agrees to lock down website storing personal info on vets, troops:
    “https://federalnewsnetwork.com/defense-main/2019/10/dod-agrees-to-lock-down-website-storing-personal-info-on-vets-troops/”

    Sure thing boss man, err SES, secret agents, etc. What ever you say or claim. Like we aren’t spied on, info given away to foreigners or enemy allies. All secure here, no problems, all is well, carry on. Happy happy happy. 🙂 Freaking gamers. And to think so many fall for this stuff. Suckers born every second I reckon.

    • T- You sound so bitter and your points are paranoid and frankly a pile of BS.

      First y’all bit(h about wait times and such- THEN you get care in the community but you feel its a violation to share your health information with the community doctors you want to see. The VA is not selling your information or doing any harm, they were trying to make it easier for you to be seen on the outside.
      The CITC providers are refusing to see veterans w/out their records. I mean what doctor can treat you and not have history on WHY YOU ARE THERE. They won’t Rx you without knowing what you are already taking. So by opting out you are only delaying your care on the outside more. So instead of being seen in 2 days where your records are available, you will have to go to the provider, sign a release, get release sent and records sent over to the provider- about a month process.

      And BTW Ben stop trying to make $$ off these vets with your BS. The VA postponed till January last week because the site wasn’t ready – it had nothing to do with your BS lawsuit.

      • Kagg, I disagree with you. The history is like this. Do not regret the past nor wish to shut the door on it. Not totally applicable today. VA needs to change the laws.

      • KAGG

        Good want more points?

        One you must be new here and for another judging or claiming to know people or issues YOU know nothing about. Showing your one-sided, self-centered, self-absorbed, far lefty-like attitude/attacking (cause everybody is all alike no individual issues) (good little communist thinker), cheerleading, narcissistic all knowing and total ignorance. Unionized perhaps? You have shown yourself to be a typical uncaring dumb-ass that hasn’t gone through much in life or on easy street, well connected, or probably in with the scum-bags some of us complain of.

        Good little commie wanting all others to be silent or get astro-turfed, gas-lighted, and other fun things? You jerk. We are supposed to love and trust all or enjoy fools like you with your attitude who probably works in health care.

        You offer no questions or help in any manner, but attack and sling your poo.

        Come back scum-bag and have a real name behind your anonymity like I do, have, and will again complete with FB page just for some proof and show you and those like you, are just big parts of the problems we have today and lame ass idiots. Either by the commies, silent majority, one of those “good people” who stand by and allow corruption and evil to prosper? A two-faced creep like the VSOs and others that play politics and wallow in hero worship for what’s that worth. Then attack those un-like them or their brand of lies, propaganda, supporting everything from attacks on other citizens, the censoring to the loving of vet suicides, any abuses, and oppressing, etc. What are you exactly freak-a-zoid? Ass-hat wearing lemming for sure. Which hat is down over your ears today VA worker, civy, contractor etc?

        > Final point. Since you live in la la land and everything is perfect, you’re very happy and content, suck up all the Kool-Aid without question (probably one of those dishing it out), leave others alone. Especially those who are not as fortunate/connected as you and have legitimate gripes. If still alive and healthy enough to gripe. To me your like the ones in health care that just game, let people die, drive some to suicide and laugh simply not caring at all.

    • T – – – On the mark. The biggest illusion most Americans labor under is that we still live in a free country. All other delusions branch off of that. You drop some real nuggets for those who are willing to pay attention.

      Ben – – – Thank you for your continuing coverage of hot-button issues that affect the veteran community. There are many things the VA would prefer the veteran never know about how they are ‘looking out for our best interest’. Those things are what lead to wait time scandals, patients being exposed to HIV/Hepatitis due improper sterilization of medical equipment, murder of patients at VA medical centers, etc. I could go on and on, but it would be too much to type.

      A big congratulations to Commander John Wells, and Military Veterans Advocacy for their timely filing of the lawsuit against the VA over this matter. No doubt that is what got the VA ‘leadership’ to reconsider their decision and come up with a hasty written declaration to give veterans more time to opt out before automatically sharing their info.

      KAGG – – – Where did you get the idea that Ben filed the lawsuit? Reading comprehension problems?

  3. T, I agree with you.
    And too, Ben, I do not have a problem with my history being shared in a secure way; but, however, it seems like the VA cannot accept change to me. I will illustrate an example. The VA modality is too believe they are the sole experts. There is no way I would trust the VA in today to make decisions for me. I am basing this on what I have already been having to do and involved in with cleaning up and correcting after them. Evidence of all and private sector witnesses. VA can claim whatever they desire; but, evidence illustrates to the contrary. The history at time of my Navy retirement can be there and few years forward; but, most is not applicable today. Ben, if the VA cannot accept this, then they need to change the laws. I will further illustrate. Say you have a govt official who does not have any knowledge in Exercise Physiology or Athletic Training but they want to implement a fitness program for the citizens. Govt official goes ahead and designs it based on how this govt official believes it should be. Did the govt official do a survey or speak to the citizens with inquiry about their physical standards and needs? The answer is no. Now the govt official rolls out the exercise program based on the govt official decision process only. Now who does this serve? Nobody. It debunks who the citizens are. The govt official imposes claims on citizens that are no longer valid or are not accurate today. The claims are based on the govt official’s own biased interpretations and based on how the program should be from his perspective only. The govt official then restricts the citizens from doing whatever who are actually more educated and who are more informed about the physical conditioning of their bodies / health. So now do you see the picture? Ben, no vet is trying to hide anything from the VA. This is not what this is about. Many in the VA believe they know best when they do not. I know they don’t because I have been having to clean up behind them. Too many laws and takes too long. The VA decides and dictates when many of them are clueless. Ben, how would the VA react if I called VA Secretary Robert Wilkie or VBA to stop payment of my compensation? Do you believe they would stop slamming me then? A vet and I am speaking for myself is being held hostage for no reason. Ben, they need to change the laws.

    • Though here is the real problem. The VA does not want the veteran to recover to health or continue to move forward within the limitations to even a better life. But they claim the opposite. They claim to be all in support of. No they are not. If they were, they would not muddle up the system so with laws and regulations with having a law for every i dotted and for every t crossed. Little access to resources. Speaking about working for them Not. They do not align with LIFE. They may have been more humane in the late 90s and early 2000s; but, they are not today. They block everything. Please tell me why? Makes me do it. But see they are restricting it. They align with sustain and hospice. Ben they need to change the laws.

      • Benjamin, the questions in which I have been discussing, I am going right to the source. I am going right up the middle of the VA. One layer at a time. The first question is: Why does the Department of Veterans Affairs have a dagger in my back with their laws at every turn? I would like to know why and what for? What is this really about? It could be that many of them are a bunch of Speaker Pelosises. Who knows? Meanwhile, I am marching on to my own tune to do the best that I can with what I have.

    • You sound like another bitter vet who didn’t get 100% or get your way with the doctors. You all bit(h about the VA – well you are free to leave it now and get CITC – and guess what?????? All those outside doctors SHARE INFO.

      • KAGG,

        FUCK YOU SHITHEAD!!!!!

        BTW (I’ll spell this out for you since you seem to be so damned stupid! – By The Way), If you sign the opt out form at your civilian doctor’s office then they cannot share. They are highly sue-able and the v.a. shitheads aren’t. I see one specialist outside the v.a. system of crooks and opted out of his sharing my information. They MUST respect that where the v.a. shitheads will not.

        A veteran ragging on a fellow vet is ASTOUNDING to say the least. But, we MUST make the exception for SHITHEADS like you!!!!!

        Hang in there Angela because I am going through the same bullshit. I came out of the military with a severe head wound with severe medical complications and they accused me of lying about it. I showed them proof and they still treat me like shit.

        I am a disabled Veteran of 3 wars (2 at the same time), several skirmishes and 2 deployments to hostile zones and will never tolerate abuse from another vet.

  4. I wonder if the form I filed on September 27, 2019, after receiving the ‘heads up’ from this forum, is still valid for this delayed date?

    Please note that it was a ‘dastardly deed’ they perpetrated when they only gave us a 1 week notice to file the forum to opt out.

    Since this is the 4th of October they may have already transferred 100s of thousands of records to corrupt peoples.

    I think that shithead trump(ty dumpty) is behind this. He may have made millions from it already.

    • I sent the form in on 9/28 via USPs priority mail with signature required. It got to the VAMC on Monday 9/30 the cutoff date. I’m sure that regardless of my effort some of my med info is out there.

    • M dv, If you have read what Ben had put out about that form, Ben said that just submitting that form, you basically are Opting IN to their plan, and then It supposedly Opts you out. So, how I see it, no Vet should have to Opt in to Opt out, meaning, No Vets Health Records should ever be Shared/Viewed without a Personal Consent from the Vet, Period! If those that don’t care about their records and don’t mind the Sharing(exposing) Then they should just be asked to Opt in. Pretty Simple. Otherwise, it undermines the entire premise of HIPPA and/or each Citizens 4A Right to Privacy. Just my opinion of course.

      • ScooterDave,

        I don’t really get what you just stated. Submitting what form? The 10-0484 dated FEB 2014?

        It is the old form for the old system.

        The new system requires a ‘VA Form 10-10164’ dated OCT 2019 in order to ‘OPT-OUT’ of their evil enterprise of selling your info to whomever wants it regardless of their need. REPEAT – Anyone who wants your information can get it. All they have to do is ask. They may have to pay the v.a. for it too but that is yet to be uncovered.

        Someone, probably the v.a., sold my information to an outfit called “NewDay USA” and they have been sending me solicitations every week to get me to refinance my home with them. They changed their name from something else that was close to the new name because they were under investigation from the state department for ripping off military and their families. Me thinks they are still doing so but have moved their sights (cross-hairs) to more weaker victims who are more desperate, disabled veterans.

        So, NO, I do not want any part of my information shared. NOT even my name, rank and serial number. CAPEESH?!!!

  5. Here is what I copied from the v.a. website:

    What basic health care services does VA cover?
    We cover preventive care services, like:

    Health exams (including gender-specific exams)
    Health education (including nutrition education)
    Immunization against infectious diseases (like flu shots)
    Counseling on genetic diseases (diseases that run in families)
    We cover inpatient hospital services, like:

    Surgeries
    Medical treatments
    Kidney dialysis
    Acute care (short-term treatment for a severe illness or injury or after surgery)
    Specialized care (including organ transplants, intensive care for mental and physical conditions, and care for traumatic injuries).
    We cover urgent and emergency care services, like:

    Urgent or emergency care at some VA health facilities.
    Urgent care for injuries and illnesses that need attention right away, but aren’t life threatening, at urgent care locations that are part of our contracted network. This may include care at a VA-approved:

    Walk-in retail health clinic for minor illnesses like a sore throat or earache
    Urgent care facility for more pressing (but not life-threatening) illnesses or injuries that require treatment like splinting, casting, or wound care

    To use these services, you’ll need to be enrolled in VA health care, and you’ll need to have received care from us within the past 24 months. Be sure to tell the urgent care provider that you’re using the VA urgent care benefit when you arrive.
    Emergency care in a non-VA hospital, clinic, or other medical setting—only under certain conditions. For us to consider covering non-VA emergency care for a non-service-connected condition, you’ll need to meet several requirements.
    We cover other services and needs, like:

    Mental health services to treat certain issues like posttraumatic stress disorder (PTSD), military sexual trauma (MST), depression, and substance use problems.
    Assisted living and home health care (depending on your needs and income as well as space in the programs).
    Prescriptions written or approved by a VA doctor.

    What other medical services will VA cover to support my treatment?
    We may cover services that your VA primary care provider concludes you need to support your treatment (called ancillary services), like:

    Tests used to diagnose health conditions, including blood work, X-rays, and ultrasounds
    Therapy and rehabilitation services, including physical therapy, vision rehab, and therapy for traumatic brain injury
    Additional services, including prosthetic items, audiology (care for hearing loss), and radiation oncology (cancer care)

    They leave out soooooo much!

  6. Hilarious!
    I had felt left out, by not receiving this infamous letter, of which, people are referring to

    At last, today (October 4th) I received the letter dated September 9th, effective September 30th.

    Intentional? No doubt.

    Thanks for the actions, on our behalf!

  7. After reading your article Sunday 9/29 I printed the form signed it and drove 52 miles to personally deliver it. The woman in the office of information release had no clue what it was about and threw it on her pile of paperwork. I went from there to the patient advocates office and ripped her for the VA not notifying veterans and setting an impossible response date. I further complained about them not training their staff to enable them to better handle vets who had questions. When I got home I had a letter delivered from the VA addressing the records release Snafu and I also received an email. Very clear to me they had no intention of any veteran opting out.

  8. KAGG, The V.A. is abouslety selling this Veterans information, for your information.I got a letter, from Lanes Funeral home, stating we know your a Veteran? J. B. Byers wrote me and and asked how my C& P examination went, it’s none of there business, they know damn well how it went, I got multiable questioners from the V.A. College Satellites wanting me to fill out my experiences from Desert Storm, then I the V.A. notes it states, the can’t believe I didn’t return them, I had multiable Civilian Doctors tellme they have freinds at the V.A.? One doctor even called them and asked them to pay for my knee surgery, my knee wasn’t service connected, he called them so he could make more money on me, I was denied S.S.D.I. because of the V.A. lied in there notes and coverd up my Conditions from Desert Storm, You need to read the first Addment, and Mr. Krause is doing an excellent job on his reporting and never made a dime on any Vets!

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