[Med-privacy] Phil Inquirer: JUDGES QUESTION MEDICAL-PRIVACY RULE

Wed, 30 Mar 2005 01:01:04 EST

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[Philadelphia Inquirer,  Mar. 10, 2005]

JUDGES QUESTION MEDICAL-PRIVACY RULE

Whether  patient information is - or is not - too widely shared is
considered by an  appeals court.

By Virginia A. Smith
Inquirer Staff Writer

It  was a moment right out of courtroom hell.

Judge Theodore A. McKee of the  U.S. Court of Appeals for the Third
Circuit scratched his head in frustration  and asked the government's
lawyer to explain again who, exactly, is entitled  to see a patient's
private medical records under federal law?

Charles  W. Scarborough, the U.S. Department of Justice lawyer, hesitated
for a second  and McKee pounced: "If you're not sure what the rights of
patients are, how  is Miss Williams down the street, at age 89, supposed
to  know?"

Patients, doctors, lawyers and judges are still struggling to  understand
the federal patient-privacy rule, which was the subject of a  spirited
appeal before the court's three-judge panel in Philadelphia  yesterday.

Does it provide "broad protections" for patients wanting to  keep their
records private, as Scarborough  contends. Or does it open the gates for
personal information to be widely  shared without patient consent, as
plaintiffs' attorney James C. Pyles  insists.

Pyles represents Citizens for Health, an advocacy group that  sued
then-Secretary of Health and Human Services Tommy G. Thompson over  the
2003 rule. A federal judge in Philadelphia dismissed the suit last  year,
finding that privacy rights were not violated.

Yesterday  Scarborough repeated that position, calling the  rule "a tough
balancing between efficiency and privacy. To say it upsets  privacy is
just not correct."

The 2003 rule - part of the Health  Insurance Portability and
Accountability Act of 1996, better known as HIPAA -  amended one drawn up
at the end of the Clinton administration. Among its many  provisions, the
old rule required patient consent in "routine" cases  involving payment,
treatment and "health-care operations."

The amended  rule, which the first Bush administration implemented in
2003, rescinded the  consent requirement, meaning that in "routine"
matters, patient permission  was no longer needed for private records to
be shared with doctors, dentists,  hospitals, HMOs, insurance companies,
billing firms and  others.

Records include test results, diagnoses, physicians' notes and  other
information, some of it embarrassing and all of it intensely  personal.

Yesterday, McKee and Judge Marjorie O. Rendell worried aloud  that just
about anything could be construed as payment, treatment and  health-care
operations - and thus could be shared.

Suppose an insurer  wants to do a risk survey and asks to look at patient
records, Rendell  wondered, but a patient tells his doctor he doesn't
want that information to  be shared.

Would the response then be, "I'm sorry. The federal government  says we
don't have to honor that?" she asked.

If the survey was to  find out how many white females over 50 - like
Rendell - got treated for  something, Scarborough said, the  patients'
names and other identifying details would be taken out. By law,  only the
"minimum necessary" information is released.

And if patients  believe their privacy rights have been violated, they
can file written  complaints to the federal Office of Civil Rights, he
said.

In his  remarks, Pyles said that under the current privacy rule, patients
wouldn't  even know that a third party had asked for their records. And
provided they  could figure out how to file a complaint, how would they
know they needed  to?

"No one asks you. No one tells you," he said, arguing that the right  to
privacy is key to the Hippocratic oath, accreditation standards,  ethics
codes of professional medical groups, most state laws, and virtually  all
health-care providers.

"But we don't see how there is a right to  privacy left in this country,"
he said.

The court, which did not say  when it would rule in the case, has wide
latitude. It could let the lower  court decision stand, declare the new
privacy rule unconstitutional, or send  the case back to a U.S. District
Court for more review. 

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Mar. 10, 2005] JUDGES QUESTION MEDICAL-PRIVACY RULE Whether=20
patient information is - or is not - too widely shared is considered by a=
n=20
appeals court. By Virginia A. Smith Inquirer Staff Writer I=
t=20
was a moment right out of courtroom hell. Judge Theodore A. McKee of=20=
the=20
U.S. Court of Appeals for the Third Circuit scratched his head in frustra=
tion=20
and asked the government's lawyer to explain again who, exactly, is entit=
led=20
to see a patient's private medical records under federal law? Char=
les=20
W. Scarborough, the U.S. Department of Justice lawyer, hesitated for a se=
cond=20
and McKee pounced: "If you're not sure what the rights of patients are, h=
ow=20
is Miss Williams down the street, at age 89, supposed to=20
know?" Patients, doctors, lawyers and judges are still struggling to=20
understand the federal patient-privacy rule, which was the subject of a=20
spirited appeal before the court's three-judge panel in <st1:City=20
w:st=3D"on"><st1:place w:st=3D"on">Philadelphia</st1:place></st1:City>=20
yesterday. Does it provide "broad protections" for patients wanting t=
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keep their records private, as <st1:place w:st=3D"on">Scarborough</st1:pl=
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contends. Or does it open the gates for personal information to be widely=
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shared without patient consent, as plaintiffs' attorney James C. Pyles=20
insists. Pyles represents Citizens for Health, an advocacy group that=
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sued then-Secretary of Health and Human Services Tommy G. Thompson over=20
the 2003 rule. A federal judge in <st1:City w:st=3D"on"><st1:place=20
w:st=3D"on">Philadelphia</st1:place></st1:City> dismissed the suit last=20
year, finding that privacy rights were not violated. Yesterday=20
<st1:place w:st=3D"on">Scarborough</st1:place> repeated that position, calli=
ng the=20
rule "a tough balancing between efficiency and privacy. To say it upsets=20
privacy is just not correct." The 2003 rule - part of the Health=20
Insurance Portability and Accountability Act of 1996, better known as HIP=
AA -=20
amended one drawn up at the end of the <st1:City w:st=3D"on"><st1:place=20
w:st=3D"on">Clinton</st1:place></st1:City> administration. Among its many=20
provisions, the old rule required patient consent in "routine" cases=20
involving payment, treatment and "health-care operations." The ame=
nded=20
rule, which the first Bush administration implemented in 2003, rescinded=20=
the=20
consent requirement, meaning that in "routine" matters, patient permissio=
n=20
was no longer needed for private records to be shared with doctors, denti=
sts,=20
hospitals, HMOs, insurance companies, billing firms and=20
others. Records include test results, diagnoses, physicians' notes an=
d=20
other information, some of it embarrassing and all of it intensely=20
personal. Yesterday, McKee and Judge Marjorie O. Rendell worried alou=
d=20
that just about anything could be construed as payment, treatment and=20
health-care operations - and thus could be shared. Suppose an insu=
rer=20
wants to do a risk survey and asks to look at patient records, Rendell=20
wondered, but a patient tells his doctor he doesn't want that information=
 to=20
be shared. Would the response then be, "I'm sorry. The federal govern=
ment=20
says we don't have to honor that?" she asked. If the survey was to=
=20
find out how many white females over 50 - like Rendell - got treated for=20
something, <st1:place w:st=3D"on">Scarborough</st1:place> said, the=20
patients' names and other identifying details would be taken out. By law,=
=20
only the "minimum necessary" information is released. And if patie=
nts=20
believe their privacy rights have been violated, they can file written=20
complaints to the federal Office of Civil Rights, he said. In his=20
remarks, Pyles said that under the current privacy rule, patients wouldn'=
t=20
even know that a third party had asked for their records. And provided th=
ey=20
could figure out how to file a complaint, how would they know they needed=
=20
to? "No one asks you. No one tells you," he said, arguing that the ri=
ght=20
to privacy is key to the Hippocratic oath, accreditation standards,=20
ethics codes of professional medical groups, most state laws, and virtual=
ly=20
all health-care providers. "But we don't see how there is a right=20=
to=20
privacy left in this country," he said. The court, which did not s=
ay=20
when it would rule in the case, has wide latitude. It could let the lower=
=20
court decision stand, declare the new privacy rule unconstitutional, or s=
end=20
the case back to a U.S. District Court for more review.<o:p></o:p>=

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