Report From the States

Debate over Medical Privacy Rule Change is Misdirected

Twila Brase, RN

Outrage over the latest proposed modification to the federal medical privacy rule is misdirected and political.

Had this kind of outrage been expressed by the media and non-profit organizations a year ago, there would have been more opportunity to protect patient privacy the way the public wants their privacy protected. Reporters are understandably upset over the proposed elimination of patient consent by the Bush administration. But what also needs to be changed --- what isn't being discussed and should have been debated a year ago --- is the provision that gives federal officials and numerous others full access to the medical records of every American --- without patient consent.

The patient consent provision the Bush administration proposes to delete relates only to use of data for payment, treatment and health care operations. Other releases are allowed without consent.

The rule allows doctors, hospitals and health plans to disclose identifiable medical data without patient consent for eleven activities called "national health care priorities." In addition, the U.S. Department of Health and Human Services, under the Clinton administration, wrote the rule to permit federal access to patient medical records at any hour of any day --- without a search warrant or even a complaint.

Therefore, recent political statements provide citizens with a false sense of security: "Patients' records belong to patients, and they should remain private unless they consent to release them," (Sen. Edward Kennedy, March 22 statement); and "The President believes strongly in the need for federal protections to ensure patient privacy, and the changes we are proposing today will allow us to deliver strong protections for personal medical information while improving access to care," (HHS Sec. Tommy Thompson, March 21, HHS press release).

Disclosing patient data without consent for government databases, law enforcement, state and federal public health activities, medical research, public policy research, organ donor solicitation and public safety remains a part of the rule. That's what was in the Clinton rule. That's what Bush approved last year. That's what is still in the rule.

Although the patient consent provision Bush proposes to eliminate was coercive, forcing patients to sign or forgo care or coverage, it acknowledged that patient consent is fundamental to medical care. Without consent, patient records become public property.

The Clinton and Bush administrations are equally to blame for the disintegration of patient privacy rights. The public needs to understand that patient privacy will not be protected until patient consent is required at all times and in all situations. Without comprehensive consent requirements, the medical privacy rule is a sham.

Ms. Brase is the president of the Citizen's Council on Health Care (CCHC), an independent, free market, health care policy organization located in St. Paul, Minnesota. Her e-mail is: twila@cchc-mn.org.

Although this report is out of CCHC in St. Paul, Minnesota, the Medical Privacy Regulation is a federal provision that will affect all citizens in every state.-Ed.

Originally published in the Medical Sentinel 2002;7(2):64. Copyright©2002 Association of American Physicians and Surgeons (AAPS)