S. 782: Patients' Telephone Privacy Act of 1999 (long)

[Peter Marshall <techdiff@ix.netcom.com>]

S.782

SPONSOR: Sen Feinstein, Dianne (introduced 04/13/99)
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   * SHORT TITLE(S) AS INTRODUCED:
     Patients' Telephone Privacy Act of 1999

   * OFFICIAL TITLE AS INTRODUCED:

 A bill to amend title 18, United States Code, to modify the exception to
the prohibition on the interception of wire, oral, or electronic
communications to require a health insurance issuer, health plan, or health
care provider obtain an enrollee's or patient's consent to their
interception, and for other purposes.
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                             Senate Actions

Apr 13, 99:
     Read twice and referred to the Committee on Judiciary.
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STATUS: Congressional Record Page References

04/13/99 Introductory remarks on Measure (CR S3642-3643)
04/13/99 Full text of Measure as introduced printed (CR S3643-3644)


   * COMMITTEE(S) OF REFERRAL:
     Senate Judiciary


  STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS (Senate -
   April 13, 1999)


PATIENTS' TELEPHONE PRIVACY ACT

Mrs. FEINSTEIN. Mr. President, today I introduce a bill to protect the
medical privacy rights of patients when they talk to their health care
insurers or providers. The bill requires health care insurers and providers
to obtain patients' `express consent' before tape-recording or monitoring
conversations.

Today, the health insurance industry routinely tape-records and monitors
incoming telephone calls of patients with questions about their health
insurance coverage. This bill halts that common practice with two simple
rules.

First, health insurance companies and health care providers must obtain the
patient's `express consent' before tape-recording or monitoring a
conversation. Second, health insurance companies and health care providers
must give patients the option not to be tape-recorded or monitored.

The bill puts control of medical privacy back where it belongs--in the hands
of patients who have no choice but to share personal information with their
health insurance and health care providers.

The bill protects all patients--

Whether covered by private or public health plans,

Whether covered by group, individual, or self-insured health plans,

Whether covered by Medicare or Medicaid,

Whether covered by Federal health plans, or

Whether covered by the Children's Health Insurance Plan.

Let me emphasize again who would be subject to the bill--the health
insurance and health care industry--a huge industry that necessarily affects
all of us. First, the bill would cover communications between patients and
health insurers. Second, the bill would cover communications between
patients and `health care providers,' which includes physicians and other
health care professionals.

Federal law now requires that only one party must consent to the
tape-recording or monitoring of a telephone conversation. In California,
state law provides that all parties must consent before a telephone
conversation may be tape-recorded. Nearly a dozen other states have adopted
similar two-party consent laws. They include Delaware, Florida, Illinois,
Kansas, Maryland, Massachusetts, Michigan, Montana, New Hampshire,
Pennsylvania, and Washington.

Even two-party consent laws, however, do not adequately address this
problem. Health insurance companies tape-record or monitor patients' calls
based on the patient's implied consent. Implied consent arises from the
patient talking after hearing the health insurer's recording that the call
may be tape-recorded or monitored. In this case, courts have held that
consent is given implicitly.

Consequently, merely changing federal law to a two-party consent rule would
not solve the problem. The key requirement must be that the health insurer
or health care provider obtains the patient's express consent. Only this
change will protect individuals when they call their health insurance
provider with questions about their health care coverage. When my office
contacted the top 100 health insurance providers in this country, we learned
from nearly all who responded that they routinely monitor or tape-record
calls received from patients.

Let me share with my colleagues some responses that we received. Kaiser
Permanente operates in nineteen states and the District of Columbia, and
provides care to more than nine million members. Their practice varies from
state to state, depending on applicable state laws.

Kaiser Permanente may: Monitor randomly selected calls, in which case it
may, or may not, notify patients in advance; or tape-record all or randomly
selected calls, in which case it may, or may not, notify patients in
advance.

United HealthCare wrote to me that they did not believe that tape-recording
or monitoring calls even presents a privacy issue. Their rationale was that
they only randomly tape-record calls and only after advising the caller that
they may record the call.

Great-West responded that a patient has the option of communicating in
writing if the patient does not want a telephone call to be tape-recorded.
Let me say simply--that is not good enough for me. Imagine the undue burden
the task of writing a letter may place on elderly or seriously ill patients.


Despite the two-party consent rule in California, New York Life Care Health
Plans, Inc., asserted that no violation of California law occurs without a
`confidential communication.' Under California state law, the definition of
a `confidential communication' does not include communications where the
parties may expect that the call may be recorded. New York Life asserted
that, since they told patients that
their calls could be monitored, their calls were not confidential calls.

New York Life's display of legal bootstrapping shows little, if any, regard
for medical privacy rights. Their interpretation of the word `confidential'
turns its commonly understood meaning on its head! In the minds of most
people, what could be more confidential than matters about one's personal
health problems? Surely little, if anything. How many of my colleagues in
the Senate would say that communications about their health problems with
health insurance or health care providers are not confidential?

Blue Cross Blue Shield of the National Capital Area does not give patients
any notice that their calls may be monitored. Their Associate General
Counsel responded that, in both Maryland and the District of Columbia,
telephone communications in the normal course of business do not meet the
definition of an `interception.' Thus, consent is not required. Although
Virginia law considers a telephone to be an `intercepting device,' Virginia
follows the one-party consent rule.

Finger Lakes Blue Cross Blue Shield randomly tape-records calls from
patients and only now is setting up a front-end recording to inform patients
of that practice. New York requires only one party to consent.

None of the health insurance providers who responded to my office gave me a
valid reason for tape-recording or monitoring patients' calls. The standard
response from health insurers was that they tape-record or monitor patients'
calls for so-called `quality control,' an ambiguous term at best. Indeed, no
one explained what that term means, how tape-recording calls benefits
patients, or why tape-recording calls was necessary.

Of course, health insurance providers are not the only business entities
that tape-record telephone conversations. How many of us realize that when
we call for airline tickets, bank account information, mutual fund
transfers, or any myriad of other daily concerns, the other party on the
telephone line will be tape-recording the conversation? Yet, personal health
information is far more personal in nature and, accordingly, entitled to
greater protection. It stands alone as uniquely different from other
commercial transactions.

This bill does not attempt to change the consent rule for other business
entities. It would apply only to health insurance and health care providers.
Most patients today have almost no choice about their health insurer
provider or, increasingly, about their health care provider. In turn, the
health insurer may give the patient no option except to submit to
tape-recording the conversation. An elderly, or seriously ill patient, is
simply not going to object.

Admittedly, much disclosure of medical information occurs both with patient
consent and for valid medical reasons. For instance, insurance companies
receive information from physicians based upon a written consent form signed
by the patient at the physician's request. Yet, increasingly, threats to
medical health privacy have become less visible and, in that sense, more
alarming. Many individuals are left with a false sense of privacy. The
potential for misuse of personal health information is real and growing.

A fundamental right to medical privacy is embedded in American society. Most
Americans presume that telephone conversations about their health problems
are confidential. Sadly, they are wrong.

Conversations with our health insurance and health care providers often
contain deeply personal information, including prescription drugs,
psychiatric care, alcohol dependency--the list goes on and on. Surely they
deserve protection. Traditionally, Americans have relied upon a confidential
relationship with their doctors.


Let's restore at least some measure of protection to telephone conversations
about our personal health problems. This bill allows health insurance and
health care providers to continue their routine practice of tape-recording
or monitoring patients' calls--but only with the patient's express consent.




SECTION 1. SHORT TITLE.
This Act may be cited as the `Patients' Telephone Privacy Act of 1999'.

SEC. 2. MODIFICATION OF EXCEPTION TO PROHIBITION ON INTERCEPTION OF
COMMUNICATIONS.

(a) Modification: Section 2511(2)(d) of title 18, United States Code, is
amended--

(1) by striking `It shall not be unlawful' and inserting `(i) Subject to
clause (ii), it shall not be unlawful'; and

(2) by adding at the end the following:

`(ii)(I) With respect to a wire, oral, or electronic communication between
a health insurance issuer or health plan and an enrollee of such health
insurance issuer or health plan, or between a health care provider and a
patient, it shall not be unlawful under this chapter for a health insurance
issuer, health plan, or health care provider to intercept such
communication only if the patient has given prior express consent to such
interception.
`(II) In this paragraph--

`(A) the term `health insurance issuer' has the meaning given that term in
section 733 of the Employee Retirement Income Security Act of 1974 (29
U.S.C. 1191b);

`(B) the term `health plan' means a group health plan, as defined in section
733 of the Employee Retirement Income Security Act of 1974 (29 U.S.C.
1191b), an individual or self-insured health plan, the medicare program
under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.), the
medicaid program under title XIX of such Act (42 U.S.C. 1396 et seq.), the
State children's health insurance program under title XXI of such Act (42
U.S.C. 1397aa et seq.), the Civilian Health and Medical Program of the
Uniformed Services under chapter 55 of title 10, and a health plan offered
under chapter 89 of title 5; and

`(C) the term `health care provider' means a physician or other health care
professional.'.
(b) Recording and Monitoring of Communications with Health Insurers:

(1) Communication without recording or monitoring: Notwithstanding any other
provision of law, a health insurance issuer, health plan, or health care
provider that notifies any customer of its intent to record or monitor any
communication with such customer shall provide the customer the option to
conduct the communication without being recorded or monitored by the health
insurance issuer, health plan, or health care provider.

(2) Definitions: In this subsection:

(A) Health care provider: The term `health care provider' means a physician
or other health care professional.

(B) Health insurance issuer: The term `health insurance issuer' has the
meaning given that term in section 733 of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1191b).

(C) Health plan: The term `health plan' means--

(i) a group health plan, as defined in section 733 of the Employee
Retirement Income Security Act of 1974 (29 U.S.C. 1191b);

(ii) an individual or self-insured health plan;

(iii) the medicare program under title XVIII of the Social Security Act (42
U.S.C. 1395 et seq.);

(iv) the medicaid program under title XIX of such Act (42 U.S.C. 1396 et
seq.);

(v) the State children's health insurance program under title XXI of such
Act (42 U.S.C. 1397aa et seq.);

(vi) the Civilian Health and Medical Program of the Uniformed Services under
chapter 55 of title 10, United States Code; and [....]

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