Missouri Attorney General Andrew Bailey does not have the legal authority to demand access to patient records at the Washington University Transgender Center, according to a lawsuit filed Monday in St. Louis Circuit Court.
Bailey cited Missouri’s consumer protection law, known as the Missouri Merchandising Practices Act, to demand access to all electronic health records from patients at the Transgender Center as part of his investigation into the center’s practices.
In the lawsuit, Washington University is asking Judge Jason Sengheiser to determine if Bailey’s civil investigative demands are legal and to what extent in order to modify Bailey’s request, noting that the Merchandising Practices Act pertains to false advertising “in connection with the sale or advertisement of any merchandise in trade or commerce or the solicitation of any funds for any charitable purpose.”
Washington University’s attorney, James Bennett, wrote in the lawsuit that the university has turned over documents related to advertising but argued that patient care is outside of the MMPA’s bounds.
“Certain statements have been made by the attorney general that have caused Washington University to further question whether all of the requests (including those at issue now) are properly within the scope of the MMPA,” he wrote. “The statements suggested that the investigation was directed at medical decision making as much if not more than it was directed to sales or advertising.”
Bailey’s office also requested information from a Transgender Center physician and nurse. The lawsuit says the demands “appear to call for testimony about specific patients and medical decision making.”
During recent discussions about the demand, the lawsuit states, the attorney general’s office told Washington University that it “views the appropriate scope of its investigation to include consent to treatment, referrals for treatment, prescribing decisions and compliance with the standard of care for treating the (Transgender Center’s) patients.”
Bailey sent the initial civil investigative demands to Washington University Feb. 23 — two weeks after former Transgender Center employee Jamie Reed published allegations against the center in a national media outlet.
Bennett wrote that Bailey’s demand appears to be based in part on Reed’s affidavit to the attorney general.
Transgender Center patients and their parents have raised concerns over Reed’s allegations and expressed anxiety with health records and identifiable details being shared with Bailey and the public.
The lawsuit focuses on concern for patient privacy, noting patient records are protected under the Health Information Portability and Accountability Act (HIPAA).
HIPAA preempts state laws but allows the disclosure of protected health information to a “health oversight agency.”
“Historically, the Missouri state health oversight agency has been the Board of Healing Arts,” Bennett wrote in the litigation. “No case has held that the attorney general is a ‘health oversight agency.’”
Washington University asked the U.S. Department of Health and Human Services Office of Civil Rights whether the state attorney general would be considered a health oversight agency, the lawsuit says. It did not receive an answer.
In a statement to The Independent, Bailey called the records he’s seeking “critical to exposing that children were subject to irreversible, life-altering procedures without full and informed parental consent.”
This investigation not the first time Bailey used the MMPA to regulate gender-affirming care.
Bailey filed an emergency rule in April under the MMPA that sought to place restrictions on receiving gender-affirming care for both transgender children and adults. A judge blocked the implementation temporarily, but Bailey withdrew the rule before a final verdict was reached.
Washington University stopped treating transgender minors for gender dysphoria in September, citing concerns about a new law’s provision placing more liability on physicians than other treatments.
This story was originally published by the Missouri Independent, part of the States Newsroom.
