Consent and Access to Medical Records

[James Love <love@tap.org>]

Bob, I though your comments about consent were quite good.  I assume that 
you agree with me that "consent" under coercion should be dealt with the 
bill, so people have a "real" choice regarding dissemination their 
records.  Here were my comments on that issue in my November 14 comments 
that you disliked so much.  Perhaps you could suggest different 
language.  I have an open mind.  jamie


6.   The Consent Section Should Be Strengthened, to Limit Cases
     Where "Consent" Is Obtained with Coercion.

     The Section 203 provisions for disclosure for purposes other
than treatment or payment are based upon the fiction that consent
will occur without coercion.  Today it is common to be asked for
"consent" for access to medical records in order to obtain life
insurance.  Under S. 1360, we anticipate a growth in services for
searching medical records after obtaining consumer "consent"
agreements.  We are concerned that employees will seek "consent"
to examine medical records, in order to estimate the cost of
providing medical benefits, or to search for other information,
such as evidence of homosexuality, mental illness, sexual
promiscuity, or deviant behavior, to list just a few items. ,
[Employers are limited in the information they can request about
medical records prior to employment, under the federl Americans
with Disabilities Act of 1990.] With a huge industry built around
`the maintenance, transfer and indexing of patient records, it
will increasingly become easier to conduct such searches.  If
employers are allowed to request "consent," it will be difficult
to refuse.  Indeed, a refusal will be a signal that the employee
has something to hide.  

     The consent section should be strengthened by including a
provision 202 (e), for rules against coercion, which states:

     202 (e) The Secretary, after notice and opportunity for
     public comment, shall adopt rules which prohibit or limit
     requests for consent for access to protected health care
     information for purposes of employment, acceptance to a
     school or university, or for other purposes for which a
     request for consent may involve undue coercion.

     If this Congress is unwilling to protect the public from
requests for consent under coercion, then a provision should
added to section to  Sec. 401 (c), stating that this is an area
where states are not preempted from acting.

     Sec. 401 (c)(10) Any state law that limits the right of
     employers or other groups to request consent for protected
     medical information.



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James Love, love@tap.org
P.O. Box 19367, Washington, DC 20036; v. 202/387-8030; f. 202/234-5176
Consumer Project on Technology; http://www.essential.org/cpt/cpt.html
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