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Federal Rule: Your Medical Records to Be Shared

Tuesday, March 13, 2001
NEWSMAX.COM A key part of Hillary Clinton's original health care plan that would have allowed third parties to collect your private medical data and records may become federal law in a matter of weeks.
President Bush's new Health and Human Services Secretary, former Wisconsin Gov. Tommy Thompson, is considering whether last-minute regulation changes made by Bill Clinton should go through.

The new federal rule would allow doctors, hospitals, druggists, HMOs and insurance companies to pass and share your medical information without your permission.

But Thompson put the rule changes on hold, partly because they allow marketers access to private medical records they can use to sell their products.

The new rules were ordered by then-President Bill Clinton and due to become effective Feb. 26, but have been delayed until April 14.

The rule changes are supported by powerful special interests in the health care and insurance industries.

But privacy advocates are worried about a system that will work much like a credit bureau, but with information far more important than one's financial status.

The issue has gotten little ink, but consumer advocate and nationally syndicated columnist Robert Heady has highlighted concerns about the new federal rule.

The rule was issued by the Clinton administration in December pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

Under the Congressional Review Act, before major regulations can take effect, a federal agency must submit to Congress a report containing a copy of the rule, the proposed effective date and a concise general statement about the rule. For the most part, the regulations become effective 60 days after the later of the date that: (1) Congress receives the agency's report, or (2) the rule, if published, appears in the Federal Register if Congress takes no action in that time frame.

The privacy regulation was published in the Federal Register on Dec. 28, 2000. However, because of an error, the regulation was not sent to Congress until the week of Feb. 12, pushing back the effective date to mid-April.

There are problems with the new rules, however, and Thompson wants time to study them.

Sharing Your Records With Marketing Firms

Although intended to improve the confidentiality of medical records, the regulations contain a sleeper provision that allows health care providers the right to use confidential medical information for selling their products that could make such noble intentions into a sick joke.

Under the proposal, doctors can even share the information with a "business partner" who can conduct marketing on behalf of a provider.

"It's perfectly legal under the rule for someone to knock on your door and say, 'I've learned from your doctor you have hemorrhoids; would you like to buy this treatment?' " said Bob Gellman, a medical privacy consultant and former congressional staffer.

"You can only opt out after you have been marketed to. I've been working on this issue for 20 years, and it's the worst anti-privacy thing I've seen."

Right now, there are no federal limits on the use of medical information for marketing purposes, so the new rule will not allow the industry to do anything it can't do already.

Traditionally, ethical concerns and logistical impracticalities have prevented much marketing from taking place.

In the long-gone days of family doctors, the medical field didn't seem so driven by profits as it is today in the world of HMOs, Gellman said.

Also, he noted, medical records – more and more stored electronically – weren't so easy to get hold of in the old days.

The marketing loophole is part of the "final privacy rule" that HHS published on Dec. 28, 2000.

The regulation is part of the effort to implement the Health Insurance Portability and Accountability Act of 1996 – a bill that sought to fill the gaps in health coverage that commonly occur when workers get laid off or change jobs.

An important part of that law requires HHS to develop electronic standards that all health care providers and insurance companies must use to communicate with one another about treatment and bills.

The idea is that, if records are stored electronically according to a standard protocol, a patient can change medical coverage and care easily and efficiently. In short, HIPAA requires the entire medical industry to enter the digital age.

A problem is that electronic storage makes your medical records easily accessible to many people who you may not want to know that you take anti-depressants or have a urinary tract infection.

Gellman isn't the only one who's unhappy with the final draft.

On Feb. 23, Thompson said that his department would reopen public comment on the final rule. Thompson has called for more discussion and cautioned against too much regulation.

"While I don't pretend to have all the answers, I can tell you one thing," Thompson said, "it should not be a top-down, federally mandated solution."

Privacy critics and consumer advocates worry that Americans – who were consumed by the aftermath of the election and the agenda of a new president – may not have noticed that such a serious threat to their privacy is under way.

Send an urgent e-mail to HHS Secretary Tommy Thompson and let him know your view!
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