Medical Privacy Changes Proposed Bush Plan Would Lessen Patients' Say on Records

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Medical Privacy Changes Proposed Bush Plan Would Lessen Patients' Say on

Records

By Amy Goldstein

Washington Post Staff Writer

Friday, March 22, 2002; Page A01

http://www.washingtonpost.com/wp-dyn/articles/A158-2002Mar21.html

The Bush administration yesterday proposed changing some of the federal

rules designed to protect the confidentiality of Americans' medical records,

including the ability of patients to decide in advance who should be able to

use their personal health information.

The proposal would alter a federal safeguard, adopted by the Clinton

administration, that compels patients to give written permission before

their records may be disclosed to doctors, hospitals, pharmacies and

insurance companies. The new version would erase that requirement and,

instead, say that patients must at some point be notified of their privacy

rights by those who use their records.

In other changes that would loosen privacy rules, the administration

wants to enable more parents to find out what medical services their

teenagers seek and make it easier for researchers to gain access to

patients' records. In addition, business associates of various health

care providers would be given more time before they have to follow the

confidentiality rules.

But in at least one respect, the administration is suggesting a

significant strengthening of privacy rights by allowing patients to

decide up front whether to allow their records to be used for marketing

purposes.

The proposal, issued yesterday by federal health officials, represents

President Bush's effort to tailor a policy that has daunted presidents

and lawmakers for years: how much control to give consumers over the

proliferating access to medical records in an electronic age.

Last April, Bush announced that he would move ahead with the medical

confidentiality regulation adopted by President Bill Clinton -- but

indicated he would modify some rules to make them simpler and less

onerous for health care companies and practitioners.

Yesterday, in disclosing what form those modifications will take, Health and

Human Services Secretary Tommy G. said, " The changes we are

proposing today will allow us to deliver strong protections for personal

medical information while improving access to care. "

The new version was largely criticized by privacy advocates, physicians and

Democratic leaders on health care. But it was hailed by the insurance

industry. " It's a major step toward creating a workable rule, " said

Ignagni, president of the American Association of Health Plans. She and

other insurance representatives, however, contended that the administration

should go further to ease regulatory costs and give the industry adequate

time to adapt to the rules.

Administration officials said they will allow a relatively quick,

one-month period for outside comment on its proposal, before HHS

administrators begin to refine it and issue a final version. It does not

require congressional approval.

In the meantime, the parts of the Clinton-era rules with which Bush

agrees have taken effect, although health care providers will not be

required to comply with them until next year. The basic aspects that

remain intact guarantee Americans the right to inspect their own medical

records that are kept in electronic form, determine who else has seen them,

and complain when they are used without permission.

The proposed changes are the latest phase in a controversy that has

shuttled up and down Pennsylvania Avenue for years. In 1996, as part of a

broader health reform law, Congress set itself a deadline for adopting

patient-privacy protections, saying it had to do so within three years or

cede that authority to HHS.

When lawmakers missed that deadline, Clinton's aides began writing the

rules, which they finished shortly before he left office. Once Bush took

over, opponents of the regulations resumed fierce lobbying, trying to

capitalize on what they sensed was a more lenient attitude in the new

administration toward federal regulation. Yesterday's proposals provide the

first insight into how far Bush wants to go to address their complaints.

HHS civil rights officials, who briefed reporters on condition of

anonymity, said that what they called " very targeted changes " were

intended to protect patients' privacy while simultaneously eliminating

facets of the original rules that they said would interfere with

patients' access to care -- and weaken its quality. That reasoning

essentially embraces the arguments the insurance industry has raised.

Specifically, the new version strikes a different balance in patients'

control over access to their records.

While eliminating the requirement that consumers must give written

consent for records disclosure, HHS officials said, the proposal would

strengthen the requirement for health care providers to make sure

patients are aware of their privacy rights. Doctors, pharmacies and

others who use records would have to make a " good faith effort " to

obtain written acknowledgment from patients, although not necessarily

ahead of time, that they had been told about privacy practices.

HHS spokesman Pierce said the revision would avert the

possibility that " you could have been stopped in your tracks " from

getting needed treatment for failing to give permission for use of records.

Janlori Goldman, director of town University's Health Privacy

Project, said the elimination of advance permission " cuts the legs off

the privacy regulation. " Sen. M. Kennedy (D-Mass.) said that

giving permission before personal medical information is disclosed " is

central to protecting people's medical privacy. " And Palmisano,

the American Medical Association's secretary-treasurer, said, " there is more

opportunity for patient privacy to be violated now. "

In another contentious change, the administration's proposal would make it

easier than Clinton intended for parents to see their children's medical

records in any state that does not have a law that specifically guarantees

minors their medical privacy rights. Privacy advocates said that change

would deter teenagers from seeking sensitive health services, such as

abortions or treatment for mental illnesses or sexually transmitted

diseases.

© 2002 The Washington Post Company

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