I recently visited a friend in the hospital. Hanging on the wall over
the bed is a cartoon showing a demoralized patient from the back in a
hospital gown. The seam is open from head to heel, exposing the
patient's backside while he's being weighed in the intensive care unit.
The caption reads, "Now I know why they call it ICU (I see you)."
Unlike my friend's visitors who see the cartoon and get a chuckle
from it, the Clinton administration isn't laughing -- they are out to
destroy one of the few remaining shreds of privacy and human dignity
left in our modern world -- the trust between doctor and patient. This
is a relationship that dates back nearly 2,400 years to the days of
Hippocrates (460-370 B.C.), the ancient Greek physician universally
honored as the father of modern medicine.
If you'd care to comment on these new government regulations, which
will leave each of us with about the same privacy that a piece of
cello-wrapped meat has while on display at the grocery store, you have
until Feb. 17, 2000, to do so. The key, I believe, is not changing the
regulations -- which can simply be rewritten quietly later -- it's
killing the unique health-care identification number. I'm going to give
the people who alerted me the credit, and send you through the Libertarian Party website on your way to
Health and Human Services, where you can comment electronically. There
was no postal address for comments, but the U.S. Department of Health
and Human Services mailing address is 200 Independence Avenue, S.W.,
Washington, D.C. 20201. The listed telephone numbers are (202) 619-0257
and (877) 696-6775. Their email is
[email protected].
Like much of what has come out of Washington, D.C., for too long now,
these rules are cloaked in deceit, yet written by men and women who are
paid by us and bear the fiduciary duty implied by that arrangement.
Instead, they have lied to us about their intentions, touting the bill
as a way to protect our privacy, while in fact they are making our
individual, personal, and historically private medical and counseling
records essentially public property. (Psychotherapy notes -- by virtue
of a Supreme Court case -- are still private, but the diagnosis,
treatment, prescriptions, and anything other than the notes themselves
are all available.)
The mechanism for doing this is the unique health-care identifier.
What your Social Security number did for credit reporting bureaus, this
health-care identifier will do for your medical records. Your "rights"
are limited to finding out, after the fact, where your private medical
records have been broadcast, getting an accounting of how they were
sent, and yes, you can request any errors be corrected. Oh, you can see
your records, too -- just like everyone else.
Who can get your doctor's scribblings about you? The list of who
could not would be shorter. Anybody involved in government, anybody who
bills services in some way connected to health care, then there's police,
courts, administrative law enforcement, bankers. Court order? Not
necessary. Good thing, too; most courts require the information have
some relevance to the case at hand. We're not talking statistics, folks.
We're talking your unique medical history. Yours and mine.
I picked my way through as many of the proposed regulations as I
could stomach before writing this column. Here are some highlights:
What is health care? "The standards in this proposed regulation would
apply to all health plans, all health-care clearinghouses, and all
health-care providers that transmit health information in an electronic
form in connection with a standard transaction [i.e. get paid]. In this
proposed rule, these entities are referred to as 'covered entities.'"
With payment, banks got into the act. "We propose that covered
entities be permitted to disclose protected health information to
financial institutions for ... 'authorizing, processing, clearing,
settling, billing, transferring, reconciling, or collecting payments'
for health care or health plan premiums. This section of the statute
states that financial institutions can use or disclose protected health
information for these purposes."
Then courts got into the act. "In § 164.510(d), we propose to permit
covered entities to disclose protected health information in a judicial
or administrative proceeding if the request for such protected health
information is made through or pursuant to an order by a court or
administrative tribunal. A court order would not be required if the
protected health information being requested relates to a party to the
proceeding whose health condition is at issue, or if the disclosure
would otherwise be permitted under this rule."
And the police. "In § 164.510(f), we propose to permit covered
entities to disclose protected health information without individual
authorization to a law enforcement official conducting a law enforcement
inquiry authorized by law if the request for protected health
information is made pursuant to a judicial or administrative process, as
described below. Similarly, we propose to permit covered entities to
disclose protected health information to a law enforcement official
without individual authorization for the conduct of lawful intelligence
activities.
"We also propose to permit covered entities to disclose protected
health information to a law enforcement official about the victim of a
crime, abuse or other harm, if the information is needed to determine
both whether a violation of law by a person other than the victim has
occurred and whether an immediate law enforcement activity might be
necessary. We would further permit such disclosure for the purpose of
identifying a suspect, fugitive, material witness, or missing person, if
the covered entity discloses only limited identifying information.
Finally, we would permit disclosure of protected health information by a
health plan or a health-care provider without individual authorization
to law enforcement officials if the plan or provider believed in good
faith that the disclosed protected health information would constitute
evidence of criminal conduct that constitutes health-care fraud,
occurred on the premises of the covered entity, or was witnessed by an
employee of the covered entity....
"The medical condition of a witness could be relevant to the
reliability of that witness. Medical, billing, accounting or other
documentary records in the possession of a covered entity can be
important evidence relevant to criminal fraud or conspiracy
investigations. Nor is this list of important uses by law enforcement
exhaustive. ... These uses of medical information are clearly in the
public interest. Requiring the authorization of the subject prior to
disclosure could impede important law enforcement activities by making
apprehension and conviction of some criminals difficult or impossible."
That about covers it. But just in case they missed giving your
private life to someone somewhere, "we would permit covered entities,
consistent with applicable law and standards of ethical conduct, to
disclose protected health information based on a reasonable belief that
the disclosure is necessary to prevent or lessen a serious and imminent
threat to the health or safety of a person or the public. Covered
entities would only be permitted to make such disclosures to persons who
are reasonably able to prevent or lessen the threat, including to the
target of the threat." Perhaps that includes those who oppose these
regulations?
Is it worth asking just who decides what information is necessary for
all these activities? For 2,400 years, the individual whom the records
describe, or his or her physician, has made that decision. But since
both those parties are likely to resist handing out prescription,
diagnosis, treatment, counseling and other records to just about anybody
who asks, the new rules "generally would place the responsibility for
determining what disclosure is the 'minimum necessary' on the covered
entity making the disclosure. ... In addition, the proposal would permit
covered entities to reasonably rely on requests by certain public
agencies in determining the minimum necessary information for certain
disclosures. For example, a covered entity that reasonably relies on the
requests of public health agencies, oversight agencies, law enforcement
agencies, coroners or medical examiners would be in compliance with this
requirement."
That about does it -- for medical privacy. Donna Shalala's baby
Frankenstein receives the breath of federal life on Feb. 17. In a nation
based on the notion of limited government, it seems appropriate to ask,
"are there any limits left?"