U.S. threatens medical privacy?

November 25, 1999

New federal regulations governing the control and use of medical records will do little
to fulfill the Clinton administration’s promise of protecting medical
privacy, say critics, but will instead move government closer to digitally
warehousing medical information on all Americans, while providing third
parties easier access to private medical records.

The Department of Health and Human Services unveiled the new proposal
Nov. 3, citing the need for new standards “to protect the privacy of
individually identifiable health information maintained or transmitted in
connection with certain administrative and financial transactions.”

But critics said the HHS plan would allow a host of individuals and
groups — including some who are currently barred or legally restricted —
to access citizens’ private medical records. According to the proposal, the
recommended standards ultimately would provide access for health plan
providers, hospitals, researchers, medical students, government agents, law
enforcement officials, and others — with or without the patient’s prior
consent.

Under the proposal, the federal government would be given the authority
to “permit use or disclosure of health information without individual
authorization” for the purposes of engaging in “activities that allow the
health care system to operate smoothly.” HHS said legitimate uses of private
medical information would include “oversight of the health care system,
government health data systems, research purposes, and law enforcement.”

Sue Blevins, president of the Institute For Health and Freedom said the government, and not private
citizens, “will set the terms for who has access to medical records.”

“Patients will not even be guaranteed access to medical malpractice
information obtained for a legal proceeding,” she said.

Health and Human Services Secretary Donna Shalala called the new proposal
“an important first step” in protecting the medical privacy of all
Americans.

“Our proposals will provide Americans with greater peace of mind as they
seek care, yet they are balanced with the need to protect public health,
conduct medical research and improve the quality of health care for the
nation,” Shalala said.

Blevins countered with suspicion, saying, “We’ve seen and heard this
before. It was called ‘National Health Care Reform of 1993,’ and it was
defeated.”

“Under these regulations, people will not even be able to sue if their
privacy is breached,” she said.

According to Health and Human Services, “There is no private right of
action for individuals to enforce their rights, and we are concerned that
the penalty structure does not reflect the importance of these privacy
protections and the need to maintain individuals’ trust in the system.”

Blevins called that provision “ridiculous.”

“Individuals can’t sue, but the federal government may impose penalties
on providers, hospitals, and other organizations that breach patients’
medical privacy,” she said.

“Individuals, not the federal government, should be compensated for
invasion of their medical privacy,” she added.

In a recent speech, President Clinton praised the new standards, claiming
they “represent an unprecedented step toward putting Americans back in
control of their own medical records.”

“As they stand, the proposed regulations could lull the American public
into a false sense of security,” Blevins said. “They assure people that the
federal government will protect ‘individually identifiable information,’ but
they don’t explain how that will work. That part of the plan will be
inserted into the regulations later, but we don’t know when.”

Critics also point to the inclusion of “unique health identifiers” –
which would work along the same lines as a Social Security number – as one
of the most ominous provisions in the new standards. In a paper
published in the Fall 1999 edition of the Independent Review, Boise State
University Prof. Charlotte Twight called unique health identifiers
“Orwellian,” and questioned the “degree of encroachment” such a system would
exact of individual privacy.

“The issue is not just privacy,” she said. “It is government power.”
Quoting Dr. Richard Sobel of Harvard Law School, Twight noted, “What ID
numbers do is centralize power, and in a time when knowledge is power, then
centralized information is centralized power.”

“I think people have a gut sense that this is not a good idea,” she
concluded.

Rep. Ron Paul, R-Texas, has introduced H.R. 220, a bill designed to
repeal part of a 1996 health insurance portability law creating unique
medical identifiers. Paul’s legislation, currently languishing in committee,
is called the ”
Freedom and Privacy Restoration Act of 1999. It would “prohibit the
establishment in the Federal Government of any uniform national identifying
number, and prohibit Federal agencies from imposing standards for
identification of individuals on other agencies or persons.”

Paul’s chief of staff, Tom Lizardo, told WorldNetDaily that the
“specifics of the administration’s plan” weren’t as important as the
anti-constitutional assumptions the plan makes.

“It is ludicrous to believe that somehow the federal government is going
to ‘protect’ privacy, and, to a lesser degree, protect us from ourselves,”
he said.

In its proposal, Health and Human Services cited a congressional report
noting that “health information is considered relatively ‘safe'” already,
“not because it is secure, but because it is difficult to access.” The
report goes on to note that the agency’s proposed “standards improve access
and establish strict privacy protections.”

“That’s a contradiction,” Blevins said. “How can you ‘improve access and
still preserve privacy?”

Nonetheless, Health and Human Services pledged to balance “privacy and
other social values” with “rules that would permit use or disclosure of
health information.”

A 60-day commentary period has
been established to hear public concerns. The administration is planning to
act on the standards by February 2000.

Editor’s note: If you want to express your views or ask a question of
the White House, your congressional representative, or even your local
media — about this or any other issue — try WorldNetDaily’s new
Legislative Action Network.