A Texas U.S. congressman is planning to invoke a seldom-employed law to block the implementation of medical privacy rules issued by the U.S. Department of Health and Human Services last year, in the same way the government’s controversial ergonomics rules were blocked by lawmakers earlier this month.
Rep. Ron Paul, R-Texas, will introduce a House Joint Resolution to block the HHS rules under the 1996 Congressional Review Act — a law that allows Congress to repeal an agency’s regulation by enacting a resolution of disapproval within 60 days of the rule being promulgated.
Kent Snyder of the Liberty Committee told WorldNetDaily that after the rules were developed by the Clinton administration, “now there is some pressure for [them] to be postponed because of various privacy concerns.”
Paul is honorary chairman of the Liberty Committee.
Snyder said the Texas congressman had chosen to use the Congressional Review Act to forestall the regulations because it was the quickest way and because neither he nor the committee believes simply contacting HHS Secretary Tommy Thompson will do much good.
“We don’t believe Secretary Thompson has the power to do much of anything” to stop the rules, Snyder said, “in terms of administrative law and in terms of what the statute actually authorized the executive branch, back in 1996, to do,” in developing the rules.
“Having the public [complain] to Secretary Thompson, in the net result, really isn’t going to do much because he has no authority,” Snyder said, noting that attorneys “are currently looking into this to be sure.”
Instead, Paul will “drop a CRA, probably around noon [Thursday].” The procedure was used for the first time successfully to defeat repetitive-motion rules issued by the Occupational Safety and Health Administration shortly before Clinton left office in January. President Bush signed that resolution after it first passed the Senate, then the House.
CRA provides for an expedited consideration of a disapproval resolution by limiting debate and prohibiting amendments from being attached. Also, the law provides that if a resolution disapproving a regulation is enacted under its procedures, no substantially similar resolution can be issued, said a House Action Report.
Without any action, the new privacy rules are scheduled to take effect April 14.
Snyder said he applauded the efforts of individuals who have contacted officials and agencies before to protest rules, but, he said, “we realize that where the rubber really meets the road is in the legislative process.”
He said if the committee merely requested that concerned people contacted HHS, “that would make people feel good, but a year from now — when everything is fully implemented — it’s going to be a disaster.”
HHS announced a call for public comments regarding the final federal medical privacy rules Feb. 28. Clinton announced the new privacy regulations at a ceremony held at HHS Dec. 20.
Then-HHS Secretary Donna Shalala praised the action, saying the regulations would “affect the life of every American.”
Shalala said the rules would “improve patients’ access and control of their medical information. It will set boundaries on the use and release of medical information. It will establish standards that health care providers and others must meet in protecting the privacy of health information. It will impose penalties for violations of medical privacy standards. And it will balance our need for privacy protection with the public responsibility to support national priorities — like public health.”
“There are many competing interests battling for HHS’ ear on this important topic,” writes Sue Blevins of the Institute for Health Freedom, an advocacy group opposed to the new regulations.
“Although the informed consent provisions included in the final rule are weak, some groups want to eliminate those consent protections altogether. Citizens should let HHS know how they feel about third parties accessing their medical records without their consent,” she wrote in a March 1 press release.
“Americans are being told they have a new right to medical privacy under the final federal medical privacy rule,” Blevins said. However, a study of the 1,200-page rule “shows that the rule does not provide true medical privacy. Rather, it actually weakens individuals’ ability to restrict access to their medical records.”
“At the same time, the rule increases the federal government’s power to access individuals’ personal health information, without patient consent,” she said.
For example, though the final federal medical privacy rule says it provides Americans a new federal right to medical privacy, Blevins said “the rule creates a massive federal mandate that requires every doctor and other health care practitioner to share patients’ records with the federal government — specifically the U.S. Department of Health and Human Services — without patient consent.”
“The federal government even has the right to access an individual’s psychotherapy notes in order to monitor compliance with the new rule,” she said in an assessment of the regulations co-authored by Robin Kaigh, an attorney.
Also, disclosure of a patient’s medical records — again, without consent — could be made for many “broad reasons,” including FDA monitoring purposes, “oversight” of the health care system by federal agencies, public health surveillance activities, licensure and disciplinary actions, U.S. cooperation with a foreign government on health issues, and more.
“Moreover, once individuals’ medical records are disclosed to a third party (other than a business associate), the final rule no longer protects that information,” Blevins wrote.
“Also, there is nothing in the rule that prohibits the federal government, state governments or private parties from compiling large databases of patient information, for the purposes listed above, without patient consent. The rule does not apply to information that is collected or stored in databases without consent prior to Feb. 26, 2003 (when most providers are required to comply with the rule),” Blevins said.
And, Blevins noted, though HHS maintains that patient consent is not coerced, “health care providers and institutions may refuse to treat patients if they won’t give consent to share their medical records.”
The rule’s language on this point says: “A plan can disclose protected health information to any health care provider to assist the provider’s treatment activities; and a health care provider may use protected health information about an individual to treat another individual.”
Finally, the rule establishes a “unique patient identifier” number that ultimately, critics say, will end up in various databases — both government and private-sector — because it will be used to identify individual patients who are seen by multiple medical services personnel and facilities.
“What’s really going to press this,” Snyder said, “is that the nature of the CRA … it talks about the complete repeal” of the rule, “which will cause a lot of people to scream.”
“We’re just trying to show as many people as we can just how evil these rules really are,” he added. “It will be very interesting to see if Majority Leader Armey follows suit on this, since he’s objected to it before.”
“Doing it this way gives us a little bit of a procedural advantage,” Joe Becker, Paul’s legislative director, told WorldNetDaily.
“The bill will be a House joint resolution because it gets a special treatment,” he said. “If the House passes it, it gets streamlined in the Senate and bypasses the committee process.”
Paul, who has been a practicing physician for 30 years, has been opposed to the regulations since they were first introduced by the former Clinton administration.