More protection for psychologists' records in renewed Patriot Act

The APA Practice Organization led efforts in the mental health community to persuade Congress to improve privacy protections for psychologists' records under the renewed Patriot Act, signed into law by President George W. Bush in March.

First enacted by Congress the month following the 9/11 terrorist attacks as a series of amendments to the 1978 Foreign Intelligence Surveillance Act (FISA), supporters said it gave law enforcement authorities better tools to investigate terrorists, share information between agencies and probe terrorist finances.

As enacted, the Patriot Act caused concerns among psychologists because of a provision, Section 215, which allowed FBI agents to request special court orders for business records as part of terrorism investigations. Under the original law, someone who received a Section 215 request was not allowed to tell anyone or consult with an attorney about the request.

While the business records provision did not appear to apply to medical records of any type, the provision was so vague that it could include such records, potentially jeopardizing psychologist/client confidentiality.

Key provisions of the Patriot Act were scheduled to expire Dec. 31, but Congress extended the law while debating changes, says Doug Walter, JD, legislative and regulatory counsel in APA's Practice Directorate.

Walter says the reauthorization process offered a chance for improving the section of the law governing how federal agents investigating terrorism seek business records.

"In this case, our lobbying efforts were directed at what was pragmatic," he explains. "We highlighted the need for protecting mental health records to a greater extent than other medical records."

Nevertheless, the APA Practice Organization and other mental health advocates supported and achieved inclusion of procedural protections in the business records provision, including:

• Requiring that agents show reasonable, factual grounds to believe that the records sought under Section 215 are relevant to a terrorism investigation.

• Identifying that the records sought pertain to the activities of a suspected terrorist or person in contact with a suspected terrorist.

• Allowing the recipient of a records request to consult with an attorney and file a challenge to a records request with a FISA court judge.

• Requiring the FBI director or a deputy director to provide prior written approval when an agent seeks access to medical records.

• Imposing a "sunset" on the business records provision, allowing Congress to reconsider the provision in four years.

These changes are important even though the provision probably is of very limited applicability to psychologists' records, Walters says. In 2005, the Department of Justice indicated that no requests for medical records had ever been made under the provision since its 2001 passage, Walter notes.

Looking to the future, the approval of a sunset for Section 215 is significant, since it will give psychology advocates a chance to address any concerns that may arise about perceived misuse of the provision by law enforcement officials in seeking patient records, he says.

Starting last year, the APA Practice Organization pursued changes to the law through the Privacy Work Group of the Mental Health Liaison Group, a coalition of associations forming the largest mental health advocacy group in the United States.

In September, several mental health associations explained their concerns in a collective letter written to the chairmen and members of the House and Senate Judiciary committees, which were tasked with leading the effort to reauthorize the law.

Most of the changes to the Patriot Act argued for by the APA Practice Organization and the associations were included in the conference bill worked out between the House and Senate in December. In February, a group of conservative Republican senators threatened a Senate filibuster if further protections were not included. This blocked further action on the Patriot Act until a series of amendments, as part of a compromise worked out with the White House to allay civil rights concerns, were added to the law.

The legislation was sent as a package to President Bush and was signed into law on March 9.

"The bottom line is, although not perfect, the law is now better from when it was first enacted in 2001," Walter says.

-C. Munsey