VUMC releases gender-affirming care-related patient records at behest of Tenn. attorney general amid ongoing fraud investigation

Originally written by AADITI LELE, KATHERINE OUNG and BRINA RATANGEE and published by The Vanderbilt Hustler on 6/25/23.

The Tennessee Attorney General’s office is investigating VUMC for potential medical billing fraud after Governor Bill Lee called for an investigation into its gender-affirming care on Sept. 12, 2022.

CORRECTION: This article was corrected on June 26, 2023, at 8:15 a.m. CDT. Due to it being mentioned in the university’s statement to The Hustler, the article previously read that Vanderbilt University’s transgender healthcare task force was assessing the implications of the release of records for students. However, a university spokesperson clarified that the task force was mentioned only due to its connection to support for LGBTQ+ people.

Individuals who have received transgender care at VUMC through state-sponsored insurance plans were notified on June 20 that their medical records were released to the Office of the Tennessee Attorney General as part of a civil investigation into potential billing fraud by VUMC.

In a June 22 message to The Hustler, a university representative emphasized that Vanderbilt University and VUMC legally separated in April 2016. 

Vanderbilt University has not sent any public-facing communications to students about the investigation or records release. The university’s Student Health Center is part of VUMC. 

In the message to patients, VUMC stated that the release is in accordance with state and federal privacy laws, including HIPAA. A VUMC representative further told The Hustler on June 21 that releasing the records was the hospital’s legal obligation under the Tennessee False Claims Act. Yet, patients have expressed concerns about their healthcare privacy, particularly amid recent legislation limiting access to gender-affirming care and anti-trans rhetoric in Tennessee.

In September 2022, conservative commentator Matt Walsh posted a Twitter thread alleging that VUMC’s transgender health clinic performed gender-affirming procedures for their high profitability, disregarded employees’ personal and religious objections to such procedures and unethically treated minors. Tennessee Governor Bill Lee called for an investigation into VUMC’s gender-affirming care on Sept. 21, 2022, in response to Walsh’s comments.

Investigation details

According to a June 21 press release by Tennessee AG Jonathan Skrmetti, the ongoing investigation of VUMC formally began in September 2022. However, in a message to The Hustler, a representative for the AG’s office said the state began investigating VUMC in the summer of 2022, prior to Walsh and news outlets’ allegations. The press release states that VUMC began providing records to the state in December 2022. The representative declined to answer further questions about the investigation — such as what specific statements triggered it — due to it being ongoing. 

“The Attorney General’s Office learned that a VUMC doctor publicly described her manipulation of medical billing codes to evade coverage limitations on gender-related treatment. That information provided predication for an investigation into a potential violation of the Tennessee Medicaid False Claims Act and the Tennessee False Claims Act,” Skrmetti’s statement reads.

Under HIPAA, a healthcare provider may disclose protected health information without a patient’s consent for legitimate administrative requests, civil or authorized investigative demands or similar processes authorized under law. In this case, VUMC released patient records as part of a civil investigative demand. Hospitals are required by HIPAA to provide patients at the time of care with a Notice of Privacy Practices detailing how medical information may be used and shared. 

“I think it’s possible for a hospital system, when faced with a request for records from a government entity, to feel like they’re off the hook because they put patients on notice that a disclosure could occur,” Rachel Landauer, a clinical instructor at Harvard Law School’s Center for Health Law and Policy Innovation, said in an email to The Hustler.

Landauer added that HIPAA protections at the hospital level may not extend to the AG’s office, releasing VUMC from any responsibility or control over what the office does with patients’ information. The AG’s office emphasized that the state’s investigation focuses on VUMC, rather than patients. The released records include all services received from Jan. 1, 2018, through the present. 

In addition to specific patient records, VUMC told The Hustler that the AG’s office expanded its requested documentation to include a list of all those who were referred to VUMC’s transgender health clinic since 2018, all communication to and from VUMC’s general LGBTQ+ health program email, information about transgender clinic employee and volunteer contracts and more. 

“The records have been and will continue to be held in the strictest confidence, as is our standard practice and required by law,” Skrmetti’s statement reads. 

The AG’s office expressed “surprise” that VUMC notified patients that their records had been released, which is not required by law. VUMC declined to specify to The Hustler why it chose to do so at this time or if it has complied with the AG’s additional requests.

VUMC indefinitely paused gender-affirming surgeries for minors on Oct. 7, 2022, roughly two weeks after Walsh’s Twitter thread was posted. Providing gender-affirming to minors will become illegal across the state on July 1 due to Senate Bill 1, which passed in March. In a message to The Hustler, the ACLU of Tennessee stated that it is unable to comment on the situation due to its pending lawsuit challenging the youth healthcare ban.

Community responses

Senior Induja Kumar, president of Hidden ‘Dores, took issue with the university’s stance of principled neutrality on gender-affirming care and emphasis on the legal separation between itself and VUMC. 

“At some point, the price of principled neutrality will be the mental health and lives of trans and queer students, or whoever else the state legislature deems as its next target,” Kumar said.

In an April 19 interview with The Hustler, Chancellor Daniel Diermeier said students should be careful when labeling issues as “not up for debate” in reference to gender-affirming care for minors.

“We’re totally committed to supporting members of our community, but we still need to be able to have discussions on policies and the whole question of transgender care for minors,” Diermeier said.

Kumar further stated that students fear the potential ramifications of this situation.

“The fact that Vanderbilt has not yet reached out to students explaining how this decision may or may not affect them shows a lack of care for how the student body or greater community may be reacting to this news,” Kumar said. 

In an Oct. 9, 2022, interview with The Hustler, Diermeier said the university had been “forceful” in its support of LGBTQ+ students in light of Walsh’s accusations. 

“I think sometimes people want us to speak about broader policy issues, but our focus is on supporting the members of our community,” Diermeier said. “I’m not really quite sure what else people would be looking for at this point.”

Junior Olivia Quiroga, co-president of the Vanderbilt chapter of Out in STEM (oSTEM), said the release of patient records may affect students’ decision to seek care at VUMC. 

“The silence from both institutions [on their commitment to supporting transgender individuals] furthers the distrust that has since been fostered between the hospital and the transgender patients affected by this overturn of records,” Quiroga said. “I would say it is likely, going forward, that transgender students at the undergraduate institution will be very hesitant to seek care from VUMC.”

Quiroga added that it was “disappointing” that VUMC did not push back against the AG’s request for the patient records, which she said undermines patient trust. To counter their legal obligation to submit the records, VUMC would have had to involve legal counsel, which it did not. Christopher Sanders (MDiv ‘95), executive director of the Tennessee Equality Project, similarly questioned whether all of the requested information is necessary for the investigation and whether VUMC could have challenged the breadth of the requests.

“Transgender patients deserve medical care exactly equal to that of cisgender patients – free from bigotry and risk of danger because of their decision to seek gender-affirming care that is often life-changing and lifesaving,” Quiroga said. “VUMC has too easily submitted to the continuous transphobic requests from the state.”

Sanders told The Hustler that parents of transgender children reached out to him after receiving the notice from VUMC and expressed betrayal and fear. He added that their disappointment with VUMC was a culmination of an alleged pattern of inaction surrounding access to gender-affirming care.

“They didn’t see Vanderbilt Medical Center openly fight the bill [SB1] when it was working its way through the legislature. They didn’t see Vanderbilt Medical Center joining the lawsuit against the new law. And the fact that the care has been shut down even before the effective date of the law is not great,” Sanders said. “I think there was some hope that, at some point, the medical center would stand up to the state.”

Sanders added that he believes the way in which VUMC contacted affected patients was harmful. 

“I have to think there was something more [they could have done] than a message through the medical communications system over the Juneteenth holiday,” Sanders said.

He specifically mentioned instances of other states requesting data regarding transgender individuals, stating that these circumstances have invoked fear in Tennesseans. In January, multiple media outlets reported that Florida Governor Ron DeSantis requested records of all uses of state funding for gender-affirming care at state-university-funded healthcare facilities since 2018. Insider confirmed that at least half of the universities complied with the request, which was not required by law. 

The Texas Tribune similarly reported that Texas AG Ken Paxton requested records from state agencies about individuals who had changed genders on Texas driver’s licenses since 2021. No data was ultimately provided because an accurate count was not possible, a Texas Department of Public Safety spokesperson told the Washington Post.