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Association of American Physicians and Surgeons, Inc. v. U.S. Dep't of Health and Human Services

October 6, 2006


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


The Association of American Physicians and Surgeons, Inc. ("the Association") has sued the United States Department of Health and Human Services ("HHS" or "the Department") and its Secretary, Michael O. Leavitt, challenging the establishment and composition of the American Health Information Community and related bodies under the Federal Advisory Committee Act ("FACA"), 5 U.S.C. app. 2, §§ 1 et seq. Before the Court are defendants' Motion for Judgment on the Pleadings and plaintiff's Motion for Partial Summary Judgment. Because plaintiff lacks standing to bring its claims, the Court will grant defendant's motion and deny plaintiff's motion.


The various bodies challenged in this case concern the government's "Health IT" initiative -- a program dedicated to the development of "an interoperable health information technology infrastructure" for the purpose of "improv[ing] the quality and efficiency of health care[.]" (See Compl. ¶ 42 (quoting Exec. Order No. 13,335, 69 Fed. Reg. 24,059 (Apr. 27, 2004)

(creating the position of National Health Information Technology Coordinator within HHS).) Each of these entities is discussed herein.

I. American Health Information Community

On July 14, 2005, HHS's Office of the National Coordinator for Health Information Technology announced the establishment of the American Health Information Community ("AHIC"), a FACA committee formed to "advise the Secretary and recommend specific actions to achieve a common interoperability framework for health information technology (IT) and serve as a forum for participation from a broad range of stakeholders to provide input on achieving interoperability of health IT." Notice, 70 Fed. Reg. 40,703 (Jul. 14, 2005). (See Compl. ¶ 45 (citing notice).) The committee's formation was accompanied by Secretary Leavitt's formal determination -- "after appropriate consultation between th[e] Department and General Services Administration" -- that the AHIC was "in the public interest in connection with the performance of duties imposed on the Department by law, and that such duties c[ould] best be performed through the advice and counsel of such a group." (See Compl. ¶ 46.) According to the same determination, "it [was] not feasible for the Department or any of its existing committees to perform [AHIC's] duties" and "a satisfactory plan for appropriate balance of committee membership ha[d] been submitted." (See id.)

As established, the AHIC was limited to seventeen voting members, each appointed by the Secretary. See Notice, 70 Fed. Reg. at 40,703. According to the Association, the Secretary used this authority to "select[] a panel of 'yes-men' and 'yes-women'" who were "already committed to the [agency's] agenda" of expanding health information technology and, as a result, unmoved by the privacy concerns predominant among the public and clinicians. (See Compl. ¶ 49 ("[T]he experience of AAPS and its members indicates that people and clinicians in the United States consider Defendants' Health IT agenda frightening."); id. ¶¶ 53, 78 (citing an August 2000 Gallup poll indicating that more than seventy percent of Americans opposed unpermitted access to their medical records).) The AHIC's "ostensible representative of patients and consumers[,]" the Association asserts, is affiliated with a group dedicated to the chronically ill -- individuals, it claims, who do not share the typical patient's views regarding third-party access to medical information. (See Compl. ¶ 51.) Similarly, the Association alleges that "[t]he ostensible representative of practicing physicians" on the AHIC is also a member of the Certification Commission for Health Information Technology, demonstrating a "deep[] commit[ment] to the goals of Defendants' Health IT initiatives," instead of to the views of practicing physicians on issues such as patient privacy and the costs of implementing a health IT system. (See Compl. ¶ 50.) This imbalance, the Association contends, has resulted in AHIC ignoring the interests of patients and practicing physicians. (See Compl. ¶ 52.)

II. AHIC Subcommittees

In furtherance of its functions, the AHIC has established a number of subcommittees devoted to particular aspects of health information technology development. Four have been identified by the Association: Consumer Empowerment, Chronic Care, Electronic Health Records, and Biosurveillance. (See Compl. ¶ 57.) Each is composed both of AHIC members and nonmembers. (See id.) Each, the Association contends, was convened in a manner inconsistent with FACA's requirements for the formation of advisory committees. (See id.)

III. Other Bodies

According to the Association, the AHIC is not alone in advising HHS on matters relating to health information technology. (See id. ¶ 62.) Since 1944, the National Committee on Vital and Health Statistics ("NCVHS") -- "appointed from among persons who have distinguished themselves in the fields of health statistics, electronic interchange of health care information, privacy and security of electronic information . . . , integrated computerized health information systems . . . , consumer interests in health information, health data standards," and other areas, 42 U.S.C. § 242k(k)(2) -- has advised HHS and its predecessors. (See Compl. ¶ 62 (citing 42 U.S.C. § 242k).) Four subcommittees further the NCVHS's work: National Health Information Infrastructure; Populations; Privacy and Confidentiality; and Standards and Security. (See id.) The Association alleges that the NCVHS continued to function following the expiration of its charter on January 16, 2006. (Id.)

Finally, the Association has identified four so-called "Contractual Panels" dedicated to health information technology. (See Compl. ¶ 67.) In August 2004, plaintiff alleges, HHS hired a consulting firm to form a Health Information Technology Leadership Panel composed of executives from major American corporations and dedicated to evaluating the proper roles of government and the private sector in the development of a "Health IT" infrastructure. (See id. ¶ 44.) In October 2005, the Association asserts, HHS contracted with George Washington University to form a Health IT Adoption Initiative involving an expert consensus panel, the development of guidelines to measure technological saturation in the profession, and the production of an annual report. (See id. ¶ 63.) At the same time, plaintiff alleges, HHS contracted with RTI ...

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