Rep. Ron Paul's comments on HHS medical privacy regulations

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

>December 9, 1999
>
>
>U.S. Department of Health and Human Services, 
>Assistant Secretary for Planning and Evaluation, 
>Attention: Privacy-P, 
>Room G-322A, Hubert H. Humphrey Building, 
>200 Independence Avenue SW, 
>Washington, DC 20201         
>
>Dear Assistant Secretary:
>
>I wish to convey my displeasure with the Department of Health and Human
>Services' (HHS) proposed medical privacy regulations which were published in
>the Federal Register on November 3, 1999.  Protecting medical privacy is a
>noble goal, however, the federal government is not constitutionally
>authorized to mandate a uniform standard of privacy protections for every
>citizen in the nation. Rather, the question of who should have access to a
>person's medical records should be determined by private contracts between
>that person and their health care provider.
>
>Unfortunately, government policies encouraging citizens to rely on
>third-party payors for even routine heath care expenses has  undermined the
>individual's ability to control any aspect of their own health care,
>including questions regarding access to their medical records. All too
>often, third-party payors use their control over the health care dollar to
>gain access to even the most personal details of an individual's health
>care, using the justification that because they are paying for the
>treatments they must to have access to the patient's medical records to
>protect against fraud or other malfeasance. Because most of the concerns
>about medical privacy are rooted in the loss of individual control over the
>health care dollar, the solution to the loss of medical privacy is to
>empower the individual by giving them back control of their health care
>dollar. The best way to do this is through means such as Medical Savings
>Accounts and individual tax credits for health care. When the individual has
>control over their health care dollar, they can control all aspects of their
>health care -- including who should have access to their medical records. 
>
>Rather than support efforts to place the individual back in control of
>health care, this administration has consistently pursued an agenda that
>would enhance the power of the federal government over health care. HHS'
>proposed medical privacy regulations continue in that sad tradition. In the
>name of protecting privacy, HHS has reduced the individual's control over
>their medical records. HHS' proposal, if enacted, would deny, as a matter of
>federal law, individuals the ability to contract with the providers or
>payors to establish limitations on who should have access to their medical
>records. Instead, every American will be forced to accept the privacy
>standard decided upon by Washington-based bureaucrats and politicians.
>
>Individual citizens would not only have to accept the privacy standards
>dictated to them by Washington bureaucrats, they would even be deprived the
>ability to hold those who violated their privacy accountable in a court of
>law. Instead, the regulations give the Federal Government the power to
>punish those who violate these federal standards. Thus, in a remarkable
>example of government paternalism, individuals are forced to rely on the
>good graces of government bureaucrats for  protection of their medical
>privacy. These regulations also create yet another unconstitutional federal
>crime, at a time when voices from across the political spectrum are decrying
>the nationalization of law enforcement.
>
>These so-called "privacy protection" regulations not only strip individuals
>of any ability to determine for themselves how best to protect their medical
>privacy, they also create a privileged class of people with a
>federally-guaranteed right to see an individual's medical records without
>the individual's consent. For example, medical researchers may access a
>person's private medical records even if an individual does not want their
>private records used for medical research. Although individuals will be told
>that their identity will be protected the fact is that no system is
>fail-safe. I am aware of at least one incident where a man had his medical
>records used without his consent and the records inadvertently revealed his
>identity. As a result, many people in his community discovered details of
>his medical history that he wished to keep private!
>
>Forcing individuals to divulge medical information without their consent
>also runs afoul of the Fifth Amendment's prohibition on taking private
>property for public use without just compensation. After all, people do have
>a legitimate property interest in their private information; therefore
>restrictions on an individuals ability to control the dissemination of their
>private information represents a massive regulatory taking. The takeings
>clause is designed to prevent this type of sacrifice of individual property
>rights for the "greater good."   
>
>In a free society such as the one envisioned by those who drafted the
>Constitution, the federal government should never force a citizen to divulge
>personal information to advance "important social goals." Rather, it should
>be up to the individuals, not the government, to determine what social goals
>are important enough to warrant allowing others access to their personal
>property, including their personal information. To the extent these
>regulations sacrifice individual rights in the name of a
>bureaucratically-determined "common good," they are incompatible with a free
>society and a constitutional government.
>
>In addition to the general constitutional and philosophic objections, I also
>have a number of specific concerns with the details of the proposal. My
>primary objection is that the regulations allow law enforcement and other
>government officials access to a citizen's private medical record without
>having to obtain a search warrant. 
>
>Allowing law enforcement officials to access a private person's medical
>records without a warrant is a violation of the Fourth Amendment to the
>United States Constitution, which protects American citizens from
>warrantless searches by government officials. The requirement that law
>enforcement officials obtain a warrant from a judge before searching private
>documents is one of the fundamental protections against abuse of the
>government's power to seize an individual's private documents. While the
>fourth amendment has been interpreted to allow warrantless searches in
>emergency situations, it is hard to conceive of a situation where law
>enforcement officials would be unable to obtain a warrant before electronic
>medical records would be destroyed. 
>
>The proposal's requirement that law enforcement officials submit a written
>request to review a citizen's medical file to doctors, hospital and
>insurance companies before they can access private medical records  is a
>poor substitute for a judicially-issued warrant. Private citizens are more
>likely to want to cooperate with law enforcement officials than are members
>of the judiciary, if for no other reason than because hospital
>administrators, insurance company personnel, and health care providers will
>lack the time and expertise to properly determine if a government officials'
>request is legitimate. Furthermore, private citizens are more likely to
>succumb to pressure to "do their civic duty" and cooperate with law
>enforcement-- no matter how unjustified the request -- than members of the
>judiciary.
>
>Finally, I object to the fact that these proposed regulations permit health
>care providers to give medical records to the government for inclusion in a
>federal health care data system. Such a system would contain all citizens'
>personal health care information. History shows that when the government
>collects this type of personal information the inevitable result is the
>abuse of citizens' privacy and liberty by unscrupulous government officials.
>The only fail-safe privacy protection is for the government not to collect
>and store this type of personal information. 
>
>The collection and storing of personal medical information authorized by
>these regulations may also revive an effort to establish a "unique health
>identifier" for all Americans. As you are aware, a moratorium on funds for
>developing such an identifier was included in the HHS' budget for fiscal
>years 1998 and 1999. This was because of a massive public outcry against
>having one's medical records easily accessible to anyone who knows their
>"unique health identifier." The American people do not want their health
>information recorded on a database and they do not wish to be assigned a
>unique health identifier. The Department of Heath and Human Services should
>heed the wishes of the American people and make sure these privacy
>regulations do not become a backdoor means of numbering each American and
>recording their information in a massive health care database.
>
>As an OB-GYN with more than 30 years experience in private practice, I am
>very concerned           by the threat to good medical practice posed by
>these regulations. The confidential  physician-patient relationship is the
>basis of good health care; oftentimes effective treatment depends on
>patients' ability to place absolute trust in his or her doctors. The legal
>system has acknowledged the importance of maintaining physician-patient
>confidentiality by granting physicians a privilege not to divulge
>information confided to them by their patients. 
>
>Before implementing these rules , HHS should consider what will happen to
>that trust between patients and physicians when patients know that any and
>all information given their doctor may be placed in a government database or
>seen by medical researchers or handed over to government agents without a
>warrant?
>
>Questions of who should or should not have access to one's medical privacy
>are best settled via contract between a patients and a provider. However,
>the government-insurance company complex that governs today's health care
>industry has deprived the individual patients of control over their health
>care records, as well as over numerous other aspects of their health care.
>Rather then put the individual back in charge of his or her medical records,
>the Department of Health and Human Services proposed privacy regulations
>give the federal government the authority to decide who will have access to
>individual medical records. These regulations thus reduce individuals'
>ability to protect their own medical privacy.
>
>These regulations violate the fundamental principles of a free society by
>placing the perceived "societal" need to advance medical research over the
>individuals right to privacy. They also violate the Fourth and Fifth
>Amendments by allowing law enforcement officials and government -favored
>special interests  to seize medical records without an individual's consent
>or a warrant and could facilitate the creation of a federal database
>containing the health care data of every American citizen. These
>developments could undermine the doctor-patient relationship and thus worsen
>the health care of millions of Americans. 
>
>In conclusion, I respectfully request that the Department of Health and
>Human Services withdraw this proposal and instead put its efforts behind
>meaningful measures to place patients back in control of the health care
>system so that individuals could once again determine who should and should
>not have access to their private medical records.
>
>Sincerely,
>
>
>Ron Paul