Critics: 'Medical privacy' rules not so private

Consumer-health advocates say despite government assurances to the contrary, new medical privacy rules first developed during the Clinton administration strip patients of protections rather than strengthen them.

"After reading the new rule closely from the patient's perspective, there is no doubt about it: The new rule eliminates patient consent and gives the federal government access to each and every citizen's personal medical records – without patients' permission," says Sue Blevins, a spokeswoman for the Institute For Health Freedom.

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Amid news reports that the final Medical Privacy Rule, which took effect Monday, enhances patient privacy, Blevins said, "some industry and consumer groups that support federalizing health care and privacy are misleading the public by claiming that eliminating patient consent is no big deal."

"How does doing away with patient consent increase individuals' health privacy," she said. "How does giving more than 600,000 doctors, health insurers and data-processing companies legal authority to share patients' personal health information – without patients' consent – increase health privacy?"

Health and Human Services Secretary Tommy Thompson, however, assured patients their privacy would be well-protected.

"From the time of Hippocrates, privacy in medical care has been of prime importance to patients and to the medical profession," Thompson said last week in announcing the new rules. "Today, as electronic data transmission is becoming ingrained in our health-care system, we have new challenges to insure that medical privacy is secured. While many states have enacted laws giving differing degrees of protection, there has never before been a federal standard defining and ensuring medical privacy. Now new federal standards are coming into force to protect the personal health information of every American patient."

The department, he said, went through "an extensive process" that included the consideration of more than 100,000 public comments before adopting the rules.

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"The new rules also reflect a common-sense balance between protecting patients' privacy and ensuring the best quality care for patients," said Thompson. "They do not interfere with the ability of doctors to treat their patients, and they allow important public-health activities, such as tracking infectious disease outbreaks and reporting adverse drug events, to continue."

But Blevins said the new rule forces medical professionals and health-care providers to share private medical information with federal agencies without first getting patient permission. Also, she said, under the new rule patients whose privacy is breached have no legal recourse except to file complaints "with the federal government and/or guilty parties who breached your privacy."

Before the rule was adopted, "the traditional common practice [when seeing a doctor] had been to present the patient with a consent form that is used to get permission for the patient to have his medical records released," said Robin Kaigh, a New York lawyer who has tracked medical privacy since the bill's passage.

"When we leave an old doctor or want medical records transferred for any reason, that consent form establishes that the patient has approved the transfer of the record," she told WorldNetDaily. "If we have a personality conflict with a prior physician, we can start over fresh with any new doctor by simply not approving the transfer of the medical record."

Under the new rules, "the patient is only given notice of who the medical record will be shared with – quite a different scenario," she said.

Dr. Jane Orient, executive director of the American Association of Physicians and Surgeons, said in USA Today earlier this month that bureaucracy cannot ensure patient privacy.

"Demanding lots of mandatory reports will compromise patients' privacy and overload the system with trivia, hampering its ability to respond to what is really important," Orient said.

Kathryn Serkes, public affairs counsel for AAPS, said the new rules are so invasive patients will need "Miranda warnings" before answering medical questions.

"While masquerading as patient protection, the rules would actually eliminate any last shred of confidentiality and risk lives," she said. "The frontline defense for medical privacy always has been the patient's right to give or withhold consent to how his records are used and who sees them. These rules throw that out the window."

Last week, Rep. Ron Paul, R-Texas, introduced H.R. 1699, a bill that would repeal the new regulations and permanently abolish a national patient identification number or code.

Called the "Patient Privacy Act," Paul said his legislation "repeals those sections of the Health Insurance Portability and Accountability Act of 1996 authorizing the establishment of a 'standard unique health-care identifier' for all Americans, as well as prohibiting the use of federal funds to develop or implement a database containing personal health information."

Both measures, said Paul – who is a physician – "grew out of the Clinton-era craze to nationalize as much of health care as politically possible."

"Many things in Washington are misnamed; however, this regulation may be the most blatant case of false advertising I have come across in all my years in Congress," Paul said from the House floor. "Rather than protect an individual right to medical privacy, these regulations empower government officials to determine how much medical privacy an individual 'needs.'"

AAPS has developed a standard privacy form patients can download, print out and have their physicians sign.

"In particular, I decline to consent to the release of my medical records for the purpose of entry into a computer database which may be accessed by third parties outside of the offices or hospitals utilized by my physician," the form says.

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