Obamacare’s tenuous toehold in Montana appears to be growing no firmer. Despite a hearing crowded with supporters of the Democratic governor’s Medicaid expansion bill, Republican legislators have dealt the measure a likely death blow.

Republicans control both houses of the Montana legislature, which meets only every other year, and the health law has been controversial. The legislature refused to set up a state-run insurance marketplace before enrollment began and in 2013 it turned down a proposal to expand Medicaid. But statehouse Democrats were hopeful they could ally with enough moderate Republicans to gain a majority of votes in favor of their bill this year.

House Republicans, however, refused to advance  the bill  and invoked a rule requiring a three-fifths majority of House members to vote  for the bill to continue to the floor. That threshold is widely regarded as unattainable.

“This is a clear abuse of the power of a committee chairman,” complained House Minority Leader Chuck Hunter, a Democrat from Helena.

But the committee chairman, Rep. Art Wittich, said he and fellow Republican committee members were well within their rights to deny advancing the minority party’s bill.

“We are not a democracy by decibel,” said Wittich, who comes from Bozeman. “The democracy includes how the legislature is made up. There is a Republican majority in each house. We are the majority, and we play by the rules.”

Wittich’s move to forestall debate came at the end of the bill’s marathon first hearing last Friday, where more than 200 Montanans spent hours urging Medicaid expansion. Speakers represented the state’s hospital association, it’s low-income clinics, doctors and nurses groups, Native American tribes and the state public health association. Expansion is also backed by the state chamber of commerce.

Only a dozen people testified against the bill, including one self-proclaimed Tea Party member and two staffers from Americans for Prosperity, a group funded by the conservative Koch brothers that is campaigning against Medicaid expansion in several states.

Republicans on the committee were unmoved by proponents. They voted as a block to give the bill a “do not pass” recommendation, meaning it dies barring three-fifths of the entire House voting to revive it.

Wittich cited last November’s election outcomes as a mandate from the electorate.

“Most people in Montana do not want to increase government and grow our welfare state,” Wittich said. “So even though there may have been more people that particular night who were bussed in, and who came in, and they were organized, doesn’t dictate the outcome.”

Governor Bullock said Friday’s party-line committee vote, “told Montanans that…members of the legislature value the voices of out-of-state, dark money groups over the voices of thousands of Montanans who spoke out in favor” of his expansion plan.

But, Bullock said, “I’m not done working on this. My door remains open to legislators willing to find real solutions.”

A Great Falls Republican, Sen. Ed Buttrey, is pitching a plan that would extend Medicaid to as many Montanans as Bullock’s bill proposed. The Great Falls Tribune says Buttrey’s bill proposes premiums and co-pays for Medicaid recipients, as well as means testing.

“This is a Republican bill crafted by conservatives,” Buttrey told the Tribune. “There’s more personal responsibility and accountability. Everybody pays.”

Buttrey’s bill is still being drafted, but Bullock has already rejected another Republican Medicaid expansion plan that would cover far fewer people than the 70,000 the governor says need it. That bill, by Sen. Fred Thomas, excludes “able-bodied” adults without dependent children.

“It’s hard to put them in the same boat as somebody that’s disabled, and say we’re gonna give you the same thing that we’re giving to this disabled person,” said Thomas, who represents a largely rural area south of Missoula.

Thomas proposes that childless, non-disabled Montanans who make less than the $11,760 a year required to qualify for Affordable Care Act premium subsidies, “up your hours and do what you can to get above the federal poverty level…. That’s a reasonable solution for that individual.”

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

John Duggan, a mental health counselor in Silver Spring, Md., pays for an electronic health record system to keep track of his patients. He started using the cloud-based system five years ago to eliminate paper and make his practice more efficient.

But unlike some other health professionals, Duggan has not received any financial support from the federal government to move his practice to digital records.

For now, he doesn’t qualify for any of the $26 billion available from the federal government’s Medicare and Medicaid Electronic Health Record Program, which was part of the 2009 stimulus package. That program has offered thousands of doctors and hospitals financial incentives to adopt electronic record systems that meet certain requirements, known as “meaningful use,” with the goal of reducing medical errors and boosting coordination.

Mental health clinics, psychologists and psychiatric hospitals were left out of the incentive and penalty program, along with nursing homes, emergency medical services and others. It’s been estimated by the consulting firm Avalere Health that including them would require an additional $1 billion.

“Fundamentally it came down to cost,” said Laurel Stine, director of congressional affairs at the American Psychological Association.

But there are other obstacles too, among them, concerns about safeguarding the privacy of patients who might face job loss and other consequences if their treatment for issues such as substance abuse were shared inappropriately. And critics of the existing program say it’s premature to invest more taxpayer money in electronic record systems that are balky and in many cases, unable to share information easily.

Nevertheless, Duggan is part of a coalition of mental health professionals and advocates that is pushing Congress to give them the same incentives enjoyed by other health care providers. Their efforts helped increase interest on Capitol Hill, where five bills introduced last year included help for mental health providers. None, however, made it out of committee.

“There is a lot of traction to do this, but ultimately we’re not over the finish line,” Stine said.

Rep. Tim Murphy, R-Pa., plans to reintroduce broad bipartisan legislation later this month to improve mental health services, which, among other things, would extend incentives to go digital to mental health providers. The bill is similar to a measure he introduced last year that did not advance.

But even some mental health providers who support the effort, see potential drawbacks. Burt Bertram, a mental health counselor in Orlando, Fla., noted that mental health records may include not only a person’s current treatment plan, but their past history which might include the issues of family members and former spouses.

“If a broad base of health professionals had access to mental health records that include psychotherapy notes, I am concerned about the potential for privacy violations … not only for the patient, but also for the others who are involved in the patient’s life,” he said.

Greg Simon of Depression and Bipolar Support Alliance, a patient advocacy group, said that more than half of the 400 members responding to an online 2013 survey agreed that mental health and medical records should be combined, while only 22 percent said they should not be combined.

On the same survey, however, more than half said they feared their doctors might discriminate against them if they knew they had mental health problems.

“People did express concern about discrimination even while they generally supported the idea of a shared record,” said Simon, a psychiatrist with Seattle-based Group Health, and an investigator with an affiliated research group. “My interpretation of that is that people recognized the value of a shared record and thought it outweighed the risk of discrimination.

Recent provider backlash against the existing government program may also be a roadblock.

Earlier this year, 37 medical societies led by the American Medical Association asked federal regulators to shift direction, arguing that today’s electronic records systems are cumbersome, inefficient and can also present safety problems for patients. Despite the billions of taxpayer dollars spent, they say many of the new systems cannot readily share information. Critics suggest it does not make sense to extend the program to others until those issues are fixed.

“The almost $30 billion spent on medical providers and hospitals was not well spent, so to take more money and throw it at psychologists before we have properly diagnosed why we didn’t get good … outcomes … we need to take a breather and reassess,” said John Graham, senior fellow at the National Center for Policy Analysis, a Dallas-based think tank that seeks to limit government regulation.

In March, the Office of the National Coordinator for Health Information Technology is scheduled to issue new information-sharing standards, and mental health advocates are hoping that will help their efforts.

For now, Duggan, like many other mental health professionals, must cover the costs of digital records himself and it runs about $500 a month, including his $90 fee for the cloud service, a fee to exchange information with primary care providers, and a billing and claims service.

In a few years, he says he hopes the technology will enable him to access his patients’ full medical records — both those he has created and those from other health professionals — to find out if patients are on medications, or have other conditions that could be contributing to their mental health problems. “It’ll be a beautiful day when that happens,” Duggan said.

Al Guida, a lobbyist for Guide Consulting Services who works on mental health issues, says the ability to share information seamlessly among providers is the ultimate goal. “The only way we’ll be able to coordinate care is if we use the same electronic health records as our medical/surgical colleagues.”

That’s particularly important for patients with mental health issues because many have high rates of substance abuse disorders and physical illnesses, said Laura Fochtmann, a professor of psychiatry at New York’s Stony Brook University Hospital, who serves on the American Psychiatric Association’s Committee on Electronic Health Records.

Such patients also tend to see a larger number of physicians and can be on a range of medications and treatment regimens that require coordination, she said.

“The fact that behavioral health is carved out of this is unfortunate and problematic. The more we can integrate care, the better it is for patients,” she added.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

Mark McCamish spent more than five years preparing for a presentation he gave at the Food and Drug Administration’s headquarters this winter.

McCamish is in charge of biopharmaceutical drug development at the Sandoz division of Switzerland’s Novartis. He and his colleagues made the case to a panel of 14 cancer specialists and a group of regulators that a company drug codenamed EP2006 should be approved for sale in the U.S.  The drug, brand name Zarxio, is similar to but not quite identical to Amgen’s Neupogen, a medicine approved by the FDA back in 1991 to fight infections in cancer patients.

Industry representatives, patient advocates and investors paid close attention to the evidence under review. Some came in for the day from Europe, their suitcases propped against the wall. That’s because Novartis’ drug application represented uncharted territory.

The FDA approved Zarxio on Friday, and it’s the first time the agency has approved a so-called biosimilar, or close copy of an existing biotech medicine.

Dr. Jay Siegel, chief biotechnology officer at Johnson & Johnson and a former FDA regulator, says biosimilars are a little like the generic drugs we’re used to. The key difference is that they’re copycats of more complex medicines called biologics, made with living cells.

“In a simplistic sense, biologics are typically much larger molecules, usually made by living organisms,” Siegel says. “They can be antibodies whereas most drugs are smaller chemical entities that can be synthesized in the laboratory,” he explains.

It is difficult to make exact copies of biotech drugs because they are manufactured differently than tablets or syrups.

Think of it a little like drinks. If you want to copy the cocktail you had at your local bar, you buy the ingredients and faithfully follow the steps and proportions laid out in the bartender’s recipe. Voila! A generic cocktail mixed more cheaply (probably) at home than at the bar itself — and just as good.

Now, let’s say you fell in love with the glass of Bordeaux you had with your meal. Want to copy that? Good luck. At the least, you’ve got to account for the grapes and their unique character, the fermentation and the aging process. Making wine is a biological process that’s more complicated than simply combining ingredients in a cocktail shaker.

OK, back to the medicine.

Many biologics are approved for sale in the U.S. to treat conditions ranging from anemia to multiple sclerosis. The medicines make up a small but costly portion of the U.S. drug market. Amye Leong is a patient advocate who came in for the FDA hearing from California. Leong has rheumatoid arthritis. She was in a wheelchair for five years. No more, thanks in part to biologics. But she says it’s important to approve biosimilars because biologics are so expensive that they’re often out of reach for patients.

For example, she says, to treat some forms of autoimmune inflammatory arthritis, the medicine costs at least $1,800 a month.

“Now you want to pay rent, [buy] food, get a child through school or do you want the drug that will hopefully make a difference in your disease and life? It should not have to be about that,” she says.

The hope is that like generics, biosimilars could offer cheaper options for patients like Leong that are just as effective.

The copycat drugs have been on the market in Europe for nearly a decade and led to a 20 to 30 percent reduction in some prices for some biologics. An estimate from Express Scripts, a drug benefit manager, projects Zarxio alone could save the health system nearly $6 billion over the next decade.

But while Europe passed a law establishing an approval pathway for biosimilars a decade ago, that didn’t happen in the U.S. until the Affordable Care Act took effect. Specifically, there’s a 40-page section called the Biologics Price Competition and Innovation Act. Like the Hatch-Waxman Act that paved the way for generics in the 1980s, this law established the framework for the FDA to assess and approve biosimilars.

The legislation “was anticipated to save money,” says Gillian Woolette, a consultant at Avalere Health who attended the meeting. “So therefore, if you put it in the Affordable Care Act, both the timing was right but also the CBO estimate was a savings of $14 billion [over the next 10 years],” which helped the law pay for itself.

Other estimates have that savings even higher.

Everyone at the meeting knew cost is a huge issue, but the FDA panel’s task was to examine whether this drug is similar enough to the original to be given to patients. It’s a higher standard than what’s required for traditional generics. After a brief, anticlimactic back and forth, all 14 advisers recommend the FDA approve the drug, which it did last week.

Dr. Scott Waldman, a clinical pharmacologist from Thomas Jefferson University in Philadelphia, was on the panel. He says the Zarxio application, unlike others in the pipeline, had it easy because the drug has been used in Europe for years and there’s a lot of data to support its use.

“I think this is a pretty high bar to set and that other compounds that come through are going to have to leap over this bar,” he says.

This story is part of a reporting partnership with NPR, WHYY and Kaiser Health News.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

SALISBURY, N.C. — Lillie Robinson came to Rowan Medical Center for surgery on her left foot. She expected to be in and out in a day, returning weeks later for her surgeon to operate on the other foot.

But that’s not how things turned out. “When I got here I found out he was doing both,” she said. “We didn’t realize that until they started medicating me for the procedure.” Robinson signed a consent form and the operation went fine, but she was told she would be in the hospital far longer than she had expected.

“I wasn’t prepared for that,” she said.

Disappointing patients such as Robinson is a persistent problem for Rowan, a hospital with some the lowest levels of patient satisfaction in the country. In surveys sent to patients after they leave, Rowan’s patients are less likely than those at most hospitals to say that they always received help promptly and that their pain was controlled well. Rowan’s patients say they would recommend the hospital far less often than patients do elsewhere.

Feedback from patients such as Robinson matters to Rowan and to hospitals across the country. Since Medicare began requiring hospitals to collect information about patient satisfaction and report it to the government in 2007, these patient surveys have grown in influence.  For the past three years, the federal government has considered survey results when setting pay levels for hospitals. Some private insurers do as well.

In April, the government will begin boiling down the patient feedback into a five-star rating for hospitals. Federal officials say they hope that will make it easier for consumers to digest the information now available on Medicare’s Hospital Compare website. Hospitals say judging them on a one-to-five scale is too simplistic.

Some Hospitals Improve As Others Stagnate 

Nationally, the hospital industry has improved in all the areas the surveys track, including clean and quiet their rooms are and how well doctors and nurses communicate. But hundreds of hospitals have not made headway in boosting their ratings, federal records show.

“For the most part, the organizations that are doing really wonderfully now were doing well five years ago,” said Deirdre Mylod, an executive for Press Ganey, a company that conducts the surveys for many hospitals. “The high performers tend to continue to be the high performers and the low performers tend to be low performers.”

Story continues below

Story continues below

Some hospitals have made great gains. The University of Missouri Health System, for example, created a live simulation center at its medical school in Columbia to help doctors learn to communicate better with patients. The simulations use paid actors. Instead of having to diagnose the patient, doctors must respond to nonmedical issues, such as a feuding teenager and mother or a patient angry that he was not given information about his condition quickly enough.

“My scenario was I was late to the appointment and the patient’s husband was upset,” said Dr. Kristin Hahn-Cover, a physician at Missouri’s University Hospital. In 2013, the most recent year that the government has provided data for, 78 percent of patients at University Hospital said doctors always communicated well, a 10 percentage point jump from 2007. Other scores rose even more.

At Virginia Hospital Center in Arlington, executives credit improvements in patient satisfaction to their psychological screening methods in hiring and rigorous job reviews. Potential nurses and other staff must first pass a behavioral screening test and then be interviewed and endorsed by some of the staffers with whom they would be working. In the third element of the program, every six months, managers rate employee performance as high, medium or low. Low performers are told to improve or find work elsewhere.

“Those are the three most defining things we did as an organization,” said Adrian Stanton, the hospital’s chief marketing officer. “Without that, I can guarantee you we wouldn’t have had the successes.”

Nudging up scores has been a frustrating endeavor elsewhere, like at Novant Health, a nonprofit hospital system that runs Rowan Medical Center and 13 other hospitals in North Carolina, South Carolina and Virginia. While some Novant hospitals have excellent patient reviews, Rowan’s scores have remained stubbornly low since Novant took over the hospital in 2008.

Last fall, Rowan’s president, Dari Caldwell, replaced the physician group that ran the emergency room because the doctors had not reduced wait times. ER waits are down to half an hour, a spokeswoman said. Doctors and nurses also are being coached on their bedside manner, like being advised not to stare at their computer when a patient is talking.

Rowan’s nurses now spend 70 percent of their time with patients, swinging by every hour. Even the president makes rounds once a day. The hospital has made lots of small improvements to provide a warmer environment, such as putting white poster boards in each room where nurses can list a few personal details about their patients.

“I can go in there and say ‘Oh, you have three dogs’ or ‘You have a grandchild, that’s great, great,’” said Jennifer Payne, a nurse manager. “And they can talk for hours about that.”

Payne said she pores over patient comments and surveys, passing around the good ones and tackling complaints. “We’re very driven by what these patients say,” she said. “Everything I do is based around how these patients come back [in comments in the surveys] and say, ‘Hey is this working’ or ‘This isn’t working.’ ”

Perceptions Sometimes Hard To Change 

Rowan executives fear scores may not be going up because patients still harbor bad memories from previous hospitalizations.

“I was treated like a dog,” Carl Denham, 76, said about a stay two years ago. He said the hospital was doing loud construction work that kept him awake, and it took nurses all day to deliver an oxygen tank his doctor ordered.

Admitted again in Rowan in December, Denham said that visit was different. “It is fantastic from what it used to be if you want my opinion,” he said as he lay in his hospital bed a few days after he came back. “I’ve been both ways and the way it is now, it is great. No waiting and the doctors are all pleasant. I never thought I’d see it like this.” He said he would give the hospital top marks.

His daughter Benicia said that in the last visit she had to nag the nurses to get her dad his medication. This time, it has not been an issue. “It’s like a totally different hospital,” she said. “I had to say, ‘Did I come to Rowan Regional?’ ”

Despite the unexpected operation on both feet, Robinson also said nurses have been attentive to her pain. “They do the best they can,” she said. “At times it gets so bad I’m crying because it’s overwhelming to me.”

But “the best they can” is not good enough for Medicare. In determining how much to pay hospitals, the government only gives credit when patients says they “always” got the care they wanted during their stay, such as their pain was “always” well-controlled. If a patient says that level of care was “usually” provided, it does not count at all. Likewise, the surveys ask patients to rank their stays on a scale of 0 to 10; Medicare only pays attention to how many patients award the hospital a 9 or 10.

“Sometimes what we see and hear from our patients doesn’t show up on their surveys,” Rowan’s president Caldwell said.

Another challenge for hospitals is that Medicare does not take into account the inexact nature of these ratings, which can be based on as few as 100 patients over a year. Medicare recommends a minimum of 300 surveys, but even those have imprecisions that Medicare does not highlight when publishing ratings on Hospital Compare, or take into account when determining financial bonuses or penalties.

In its hospitals with lower ratings, Novant is trying to replicate some of its successes at its Medical Park Hospital in Winston-Salem, a surgical center, which has the best patient satisfaction scores in the Novant system. Sean Keyser, Novant’s vice president for patient experience, interviewed the staff to figure out how it performed so well.

“The first thing they suggested was the relationship between the physician and the nurses,” he said. “They tend to round more together; they tend to huddle more together. It doesn’t matter how long we study health care organizations, personal relationships that caregivers have with each other translates into better relations with patients.”

Staff members from Medical Park now conduct the pre-surgical discussions for patients at several bigger Novant hospitals. Those preparatory talks, which take place a week or two before planned operations, give nurses the chance to allay fears and make sure that patients have realistic expectations of what will happen.

Dr. Scott Berger, a surgeon, said the smallness of the hospital—Medical Park has only 22 beds, while Rowan has 268 — gives Medical Park an advantage over other hospitals in pleasing patients. “We also think that because we only do surgery here, that we’re really able to have kind of a sharp edge, if you will, of focus on good outcomes and good patient care,” he said. “And that really carries over to the nurses as well. Because all day every day, that’s all they see, is the same kind of surgical patients over and over again.”

Even patients who had not prepared to come to Medical Park are impressed. George Stilphen, who was admitted for emergency colon cancer surgery, said he planned to rate the hospital a 10.

“They said that they’d take great care of us,” he said as he recovered from surgery in the hospital. “They were very soothing, comforting, they weren’t condescending. It was a great experience.”

Michael Tomsic, a reporter for WFAE, contributed to this report.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

Under the health law, large employers that don’t offer their full-time workers comprehensive, affordable health insurance face a fine. But some employers are taking it a step further and requiring workers to buy the company insurance, whether they want it or not. Many workers may have no choice but to comply.

Some workers are not pleased. One disgruntled reader wrote to Kaiser Health News: “My employer is requiring me to purchase health insurance and is automatically taking the premium out of my paycheck even though I don’t want to sign up for health insurance. Is this legal?”

The short answer is yes. Under the health law, employers with 100 or more full-time workers can enroll them in company coverage without their say so as long as the plan is affordable and adequate. That means the employee contribution is no more than 9.5 percent of the federal poverty guideline and the plan pays for at least 60 percent of covered medical expenses, on average.

“If you offer an employee minimum essential coverage that provides minimum value and is affordable, you need not provide an opt out,” says Seth Perretta, a  partner at Groom Law Group, a Washington, D.C., firm specializing in employee benefits.

If a plan doesn’t meet those standards, however, employees must be given the opportunity to decline those company plans, under the health law. They can shop for coverage on the health insurance marketplaces and may qualify for premium tax credits if their income is between 100 and 400 percent of the federal poverty level.

Those premium subsidies aren’t available to workers whose employer offers good coverage that meets the law’s standards.

Experts say they don’t expect many employers to strong arm their workers into buying health insurance. Those that do may be confused about their responsibilities under the health law, mistakenly believing that in order to avoid penalties they have to enroll their workers in coverage.

“That is just dead wrong,” says Timothy Jost, a law professor at Washington and Lee University who’s an expert on the health law.

“Nothing in the Affordable Care Act directs employers to make their coverage mandatory for employees,” says a Treasury Department spokesperson. The law requires large employers “to either offer coverage or pay a fee if their full-time workers access tax credits to get coverage on their own in the marketplace.” 

Employer penalties for not offering insurance that meets the health law’s standards can run up to $3,000 per employee.

For employers, forcing coverage on their workers could be counterproductive. “Do you really want to limit employees’ ability to select whether they get this coverage? What impact does that have from talent management perspective?” says Amy Bergner, managing director at human resources consultant PwC.

The practice of automatically enrolling employees in health insurance isn’t new. Many employers have been doing it for years. Some enroll new employees in the least expensive company plan, for example. But employees have generally had the option to opt out of the coverage if they wish.

Automatic enrollment makes it simple to satisfy the health law’s requirement that most people have health insurance, experts say.

The health law stipulates that employers with more than 200 full-time workers are required to enroll newly hired full-time employees in a plan unless the employee specifically opts out of the coverage. However, the provision won’t take effect until the Department of Labor issues regulations.

Employees who are unhappy about being required to buy into a company plan could complain to the Department of Labor, some experts say. It’s unclear whether such efforts would succeed.

Employment law experts point to a 2008 decision by the Department of Labor dealing with state laws that restrict employers from making deductions from workers’ paychecks without their consent. The department issued an advisory opinion saying that federal ERISA law pre-empted a Kentucky law that required an employer to get an employee’s written consent before withholding wages to contribute to a group health plan. 

Although that decision doesn’t have the force of law, it suggests how the Labor Department views such issues, says Cheryl Hughes, a principal at Mercer’s Washington Resource Group.

Please contact Kaiser Health News to send comments or ideas for future topics for the Insuring Your Health column.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

Nationwide nearly 11.7 million consumers are enrolled in 2015 Health Insurance Marketplace coverage

Affordable Care Act initiative builds on success of ACOs

The privacy of students who get care at university clinics is in doubt after the mental health records of a women who says she was raped at the University of Oregon were accessed by the school in the course of defending itself against a lawsuit.

The unidentified student is suing the university for mishandling her assault. She says she was raped by three basketball players last year. The University of Oregon found the players responsible, kicked them off the team and out of school.

But there was no court case. Nobody was found guilty of any crime. And it was only discovered later that one of the players had been suspended from a previous college team over allegations of another sexual assault.

Those are some of the reasons the woman sued the university. Here’s where the privacy issues surface:

The student got therapy at the university’s health clinic. In preparing to defend itself against her complaint, the university accessed those records and sent them to its attorney.

Kelsey Jones, 21, is a student at the University of Oregon who works with the student-run Organization Against Sexual Assault. She says the case has shaken students’ confidence in the mental health care they receive on campus, and she won’t go to the campus clinic.

“It’s very concerning for a lot of people,” Jones says. “It’s ten times harder now to seek that help and feel safe and feel okay to share 100 percent of what you’re feeling.”

Two employees at the university’s counseling center were also disturbed by the school’s actions, and they fired off an open letter to the university community. One of the authors, therapist Jennifer Morlok, said her job was threatened and she felt the school was forcing her to violate her professional ethics.

The university administration would not talk on tape for this story. But in court papers, officials argued that since the student went to the school’s health clinic, her health records belong to the school and therefore could be accessed.

In addition, they argued that because she claimed emotional distress –a medical claim – the school was entitled to her medical records under a law known as FERPA – the Family Educational Rights and Privacy Act.

Steve McDonald, a FERPA expert and an attorney for the Rhode Island School Of Design, says in this case the medical privacy law known as HIPPA doesn’t apply, and the school is within its rights under FERPA.

“I would think in almost any case anywhere in the country in a fear and emotional distress claim, those records would be relevant, and you would get them through some process,” McDonald says.

Under FERPA, at a university run health clinic, the university can access student medical records — if they’re relevant for a legal defense. That may come as a surprise to anyone who assumes that doctor-patient privilege is the same regardless of where the care is received.

Another FERPA expert, Gonzaga Law School professor Lynn Daggett agrees the university is within its rights. She says the situation allows universities to avoid an important legal process, simply because the therapist is a university employee. “The way the school would access the records in the situation with a private therapist is that during discovery, before trial, they would ask her to voluntarily agree or issue a subpoena for them,” Daggert says.

“She would have every right to make a motion to the court to quash or modify the subpoena, have the court look at her medical records in camera, which means in secret in the judge’s chambers, and have the court sort through what appropriately would be shared with the school and what would not be.”

The issue has caused such a stir, the US Department of Education spokeswoman Denise Horn weighed in on the need to protect confidentiality in a statement emailed to reporters.

“FERPA would permit the treatment records to be disclosed in litigation between the student and the institution if the records are relevant for the institution to defend itself.”

But the statement concludes: “The Department of Education urges higher education institutions to not only comply with FERPA, but also to respect the expectation of confidentiality that all Americans hold when talking to a counselor or therapist.”

Back on campus, student Kelsey Jones remains unsatisfied with the legal explanations: “Whether it’s legal or not legal, I think it’s morally and ethically not right.”

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.