Internetworkers: http://www.ibiblio.org/internetworkers/

[Kate Johnson <johnk AT ils.unc.edu>]

Dear all:
        Recent proposed changes, to the HIPAA medical privacy regulations,  
eliminate the requirement that patients consent to the disclosure of their
private health information.  In addition, activities that many would
consider marketing would be allowed by health plans, providers, drug
stores, and others.

        NY Times article on this below.

        Comments to the Department of Health and Human Services can be made 
via 
this URL: http://www.hhs.gov/ocr/hipaa/    



Bush Acts to Drop Core Privacy Rule on Medical Data                           
                                                      
                                                                              
                                                      
March 22, 2002                                                                
                                                      
                                                                              
                                                      
By ROBERT PEAR                                                                
                                                      
                                                
WASHINGTON, March 21 - The Bush administration today                          
                                                      
proposed dropping a requirement at the heart of federal                       
                                                      
rules that protect the privacy of medical records. It said                    
                                                      
doctors and hospitals should not have to obtain consent                       
                                                      
from patients before using or disclosing medical                              
                                                      
information for the purpose of treatment or reimbursement.                    
                                                      
                                                                              
                                                      
The proposal, favored by the health care industry, was                        
                                                      
announced by Tommy G. Thompson, the secretary of health and                   
                                                      
human services, who said the process of obtaining consent                     
                                                      
could have "serious unintended consequences" and could                        
                                                      
impair access to quality health care.                                         
                                                      
                                                                              
                                                      
The sweeping privacy rules were issued by President Bill                      
                                                      
Clinton in December 2000. When Mr. Bush allowed them to                       
                                                      
take effect last April, consumer advocates cheered, while                     
                                                      
much of the health care industry expressed dismay.                            
                                                      
                                                                              
                                                      
Today's proposal would repeal a provision widely viewed as                    
                                                      
the core of the Clinton rules: a requirement that doctors,                    
                                                      
hospitals and other health care providers obtain written                      
                                                      
consent from patients before using or disclosing medical                      
                                                      
information for treatment, the payment of claims or any of                    
                                                      
a long list of "health care operations," like setting                         
                                                      
insurance premiums and measuring the competence of doctors.                   
                                                      
                                                                              
                                                      
                                                                              
                                                      
The proposal is to be published in the Federal Register                       
                                                      
next week, with 30 days for public comment. The government                    
                                                      
will consider the comments and then issue a final rule,                       
                                                      
with the force of law.                                  

Secretary Thompson said he wanted to remove the consent                       
                                                      
requirements because he believed they could delay care.                       
                                                      
                                                                              
                                                      
Pharmacists and hospitals had expressed the same concern.                     
                                                      
Drugstores said they could not fill prescriptions phoned in                   
                                                      
by a doctor for pick-up by a patient's relative or                            
                                                      
neighbor. Hospitals said they could not schedule medical                      
                                                      
procedures until the patient had read a privacy notice and                    
                                                      
signed a consent form.                                                        
                                                      
                                                                              
                                                      
Hospitals and insurance companies praised today's proposal                    
                                                      
as a victory for common sense, but consumer advocates and                     
                                                      
Democratic members of Congress denounced it as a threat to                    
                                                      
privacy.                                                                      
                                                      
                                                                              
                                                      
"In general, this is great for the health care industry,"                     
                                                      
said Elisabeth Belmont, corporate counsel for Maine Health,                   
                                                      
which operates seven hospitals, a nursing home and a home                     
                                                      
health agency in Maine. Mary R. Grealy, president of the                      
                                                      
Health Care Leadership Council, which represents drug                         
                                                      
makers, drugstores, insurers and hospitals, said: "The new                    
                                                      
proposal strikes an appropriate balance. It's a workable                      
                                                      
compromise."                                                                  
                                                      
                                                                              
                                                      
But Janlori Goldman, coordinator of the Consumer Coalition                    
                                                      
for Health Privacy, an alliance of more than 100 groups                       
                                                      
favoring patients' rights, said the administration was                        
                                                      
proposing "a destructive change."                                             
                                                      
                                                                              
                                                      
Representative Edward J. Markey, Democrat of Massachusetts,                   
                                                      
said: "By stripping the consent requirement from the health                   
                                                      
privacy rule, the Bush administration strips patients of                      
                                                      
the fundamental right to give their consent before their                      
                                                      
health information is used or disclosed. The                                  
                                                      
administration's proposal throws the baby away with the                       
                                                      
bath water."                                            

Senator Edward M. Kennedy, Democrat of Massachusetts, said                    
                                                      
he was "very concerned" because he believed that "an                          
                                                      
individual should have to give permission before medical                      
                                                      
information is disclosed."                                                    
                                                      
                                                                              
                                                      
The Bush administration denied that it was eviscerating                       
                                                      
privacy protections. "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," Mr. Thompson said.                           
                                                      
                                                                              
                                                      
Under the rules, doctors and other health care providers                      
                                                      
would still have to notify patients of their rights and the                   
                                                      
providers' disclosure policies. Patients would be asked to                    
                                                      
acknowledge in writing that they had received such notice,                    
                                                      
but could receive care without the acknowledgment.                            
                                                      
                                                                              
                                                      
Ms. Goldman, director of the Health Privacy Project at                        
                                                      
Georgetown University, said: "It's absurd to suggest that a                   
                                                      
notice serves the same purpose as consent. Signing the                        
                                                      
consent makes it more likely that people will understand                      
                                                      
their rights."                                                                
                                                      
                                                                              
                                                      
Some parts of the Clinton rules would survive the changes                     
                                                      
proposed by the Bush administration. Patients would, for                      
                                                      
example, have a federal right to inspect and copy their                       
                                                      
records and could propose corrections.                                        
                                                      
                                                                              
                                                      
Congress could try to set privacy standards by law,                           
                                                      
overriding decisions by the Bush administration. But that                     
                                                      
appears unlikely. Under a 1996 law, Congress instructed the                   
                                                      
secretary of health and human services to issue rules on                      
                                                      
medical privacy in the absence of action by Congress, and                     
                                                      
lawmakers have never been able to agree on standards.  

In its proposal today, the Bush administration tries to                       
                                                      
ensure that parents have "appropriate access" to medical                      
                                                      
records of their children, including information about                        
                                                      
mental health, abortion and treatment for drug and alcohol                    
                                                      
abuse. The Clinton rules "may have unintentionally limited                    
                                                      
parents' access to their child's medical records," the Bush                   
                                                      
administration said. The proposal makes clear that state                      
                                                      
law governs disclosures to parents.                                           
                                                      
                                                                              
                                                      
The Bush proposal would also relax some consent                               
                                                      
requirements that medical researchers saw as particularly                     
                                                      
onerous.                                                                      
                                                      
                                                                              
                                                      
The rules, the first comprehensive federal standards for                      
                                                      
medical privacy, affect virtually every doctor, patient,                      
                                                      
hospital, pharmacy and health plan in the United States.                      
                                                      
                                                                              
                                                      
Health care providers and insurers must comply by April 14,                   
                                                      
2003. Anyone who violates the rules after that date will be                   
                                                      
subject to civil and criminal penalties, including a                          
                                                      
$250,000 fine and 10 years in prison for the most serious                     
                                                      
violations.                                                                   
                                                      
                                                                              
                                                      
When Mr. Clinton issued the rules in December 2000, he                        
                                                      
described them as "the most sweeping privacy protections                      
                                                      
ever written." Mr. Bush took political credit for accepting                   
                                                      
those rules last April. White House officials said Mr. Bush                   
                                                      
would back a wide range of privacy protections for                            
                                                      
consumers, even if he had to defy his usual business                          
                                                      
allies.                                                                       
                                                      
                                                                              
                                                      
The White House wanted to avoid the political embarrassment                   
                                                      
Mr. Bush suffered when he altered Clinton policies on                         
                                                      
arsenic levels in drinking water, global warming, ergonomic                   
                                                      
rules and the contamination of school lunch meat with                         
                                                      
salmonella. But after studying the medical privacy rules                      
                                                      
and listening to the concerns of companies in the health                      
                                                      
care industry, the administration concluded that major                        
                                                      
provisions of the Clinton rules were unworkable.