NEWS RELEASE: CCHC provides Comments on Medical Privacy draft

[Twila <twila@cchc-mn.org>]

May 24, 1999
For Immediate Release
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PRESS RELEASE
CITIZENS' COUNCIL ON HEALTH CARE 
1954 University Ave. W., Suite 8
St. Paul, MN  55104
www.cchc-mn.org
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Contact:  Twila Brase, R.N., P.H.N.
President, CCHC
651-646-8935p
twila@cchc-mn.org
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No confidentiality in proposed bill according to CCHC comments 
requested by Senator Wellstone's office

ST. PAUL, MINNESOTA--The Health Information Confidentiality Act language under consideration for Tuesday's (5/25/99) Senate "mark-up" session on a federal medical confidentiality bill shows little evidence of patient privacy protections according to a Citizens' Council on Health Care (CCHC), a St. Paul-based health care policy group which today sent comments to Senator Wellstone at the request of his health policy aide.

"The Act gives unprecedented access to medical records. The fact that it is labeled with the word confidentiality is meaningless. There is less confidentiality protection in this bill than patients have today," says Twila Brase, R.N., president of CCHC.

"This bill is little more than a federalized license to data access.  It offers government officials, insurers, researchers and employers the access they want without the liability concerns they have now. It removes confidentiality by authorizing and standardizing data collection."

HISTORY
According to the 1996 Health Insurance Portability and Accountability Act, Congress must pass medical privacy legislation before August 21, 1999 or DHHS Secretary Donna Shalala will create policy through regulatory authority. Senator Wellstone is a member of the Health, Education, Labor and Pensions committee which is putting together the "mark-up" bill. 

Brase claims that there are a few positive features of the bill including the right for patients to inspect, copy and amend their medical records, a right nearly 30 states do not have today in state law. In addition, cash-paying patients would be exempt from data collection and tracking. 

TWO-TIERED RIGHT
But according to Brase, this creates a two-tiered privacy right. "Only those who can afford a confidential patient-doctor relationship will have one. Everyone else's medical life is open to tracking, assessment, and inspection.

While there is patient consent language is the bill, Brase claims it is powerless against the many exceptions to consent requirements. Besides the fact that researchers and government officials can have unlimited access, it concerns her that law enforcement officers, without a subpoena or search warrant, would have access to medical records. Contrast that with the prohibition on patients accessing their own records if the clinic or health plan fears a lawsuit.  

COERCIVE CONSENT
Neither does Brase support a single authorization for consent to treatment, payment, and health care operations as is written in the bill.

"This is coercive consent. Without a signature, insurance cannot be purchased and treatment can be denied. Consent should be individualized and limited. This language institutes carte blanche access under duress."

The broad "health care operations" language, according to Brase, encompasses every management technique of HMOs including prior authorization decisions, outcomes research, patient and physician profiling, case management, database creation, and post-treatment payment decisions. 

"Everything that prohibits good and timely care can be found in the bill's definition of health plan 'health care operations.' If passed, there would be no protection for the patient from the health plan's new right to use the patient's own data to limit care."

VIOLATION OF RIGHTS
Brase believes that the proposed Act violates patient Fourth Amendment Rights and the Tenth Amendment Rights of states to create laws without federal interference. It would preempt and supersede the laws of individual states, limiting the ability of legislators to pass stricter laws protecting the rights of their constituents.

Minnesota has one of the strictest laws in the nation regarding access to medical records by researchers. Brase was instrumental in the passage of that law in 1996 and is concerned about its elimination through passage of Federal legislation.

"Research institutions like Mayo Clinic and the University of Minnesota say that they must have access to 100% of all patient data for accurate research results. Their desire for is actually more for acquisition of research dollars than actual scientific need. Unconsented research will change the very face of medical care. Patients who come to understand that their medical records are an open book will not talk freely with their doctors. Not only will this skew research results, this will prevent timely and accurate care and destroy the patient-doctor relationship.

"The authors of this Act briefly acknowledged that the loss of confidentiality risks the health and safety of individuals, but sided with the intrusive tracking and profit motives of institutions. Common sense, medical ethics, and decency dictate that patients receive confidential care." 

CONGRESSIONAL DECEPTION
"No federal law should be enacted to uniformly unravel the rights it claims to protect. Such deceit would constitute Congressional fraud. It's up to Congress to either secure medical confidentiality against the intrusive intentions of the Federal government and the financial interests of corporations or leave well enough alone and let the States protect the Rights of the people."

Citizens' Council on Health Care is a national non-profit 501(c)3 organization whose purpose is to engage and empower public participation in the health care debate through information and policy analysis. 				
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