Wes Vernon
Friday, March 16, 2001

WASHINGTON – Phone calls and e-mails have been flooding the Department of Health and Human Services since the publication of two NewsMax.com articles on the department’s consideration of a rule that would allow widespread sharing of personal medical information. Meanwhile, others say the rule goes too far. And we are getting reports of medical privacy violations even without the regulation.

As described by House Majority Leader Dick Armey, R-Texas, the rule, proposed in the final days of the Clinton administration, would require doctors, hospitals, HMOs, druggists and other health care providers to share patients’ personal medical records, sometimes without notice or advanced warning.

After NewsMax.com urged readers to e-mail HHS, Secretary Tommy Thompson’s e-mail box quickly flooded, a public reaction that the Department declined to confirm.

One reader, expressing the hope that this "was not indicative of their state of affairs," was told that to get a response, it would be necessary to send a letter to Donna Shalala, the now-departed secretary during the Clinton administration.

Another reader got this message: "If you are trying to comment on the Privacy Regulation you must submit those comments in writing to: U.S. Department of Health and Human Services, Attention: Privacy I, Room 801, Hubert H. Humphrey Building, 200 Independence Avenue, S.W., Washington, D.C. 20201. or submit the comments electronically at http://aspe.hhs.gov/admnsimp."

HHS spokesman Craig Palosky told us the secretary could not comment on which way he was leaning because he has until April 14 to accept public comment.

He did refer us to the secretary’s statement Feb. 23, when he made the decision to postpone the effective date of the regulation, and to a Feb. 8 report of the congressional watchdog agency, the General Accounting Office (GAO).

Thompson noted that HHS was legally required to submit this regulation for consideration by Congress for a 60-day period.

"Due to an oversight under the prior administration," as Thompson politely worded it, "this requirement was not met," thus prompting his postponement of the decision on the rule.

Many Clinton critics, and some supporters, would probably note that the secretary was following President Bush’s lead in "moving on." Thus, he did not point to the reasonable conclusion that the Clinton administration, known for its contempt for any input from Capitol Hill, disregarded such inconveniences as legalities.

"I believe we can protect privacy without harming access to health care," Thompson declared as he invited public comment.

It is the GAO report that shows where much of the high-powered pressure on this issue is originating. And that pressure leans heavily in the exact opposite direction favored by the NewsMax.com readers who flooded HHS e-mails in the last few days.

Cost vs. Privacy

The report is written in the GAO’s usual unemotional, "balanced," disinterested bureaucratic style. But if you have the patience to comb through it, you discover a concern with cost that seems to trump the privacy considerations.

Example: "HHS expects compliance with two provisions – restricting disclosures to the minimum necessary and establishing a privacy official – to be the most expensive components of the privacy regulation, in both the short and the long term."

The American Association of Health Plans believes that the regulation "may limit the ability of plans to obtain the patient data necessary to conduct health care operations if providers’ patient consent agreements are drawn too narrowly to allow such data sharing." One suggestion was made that plans could include language in their provisions "that would ensure access to patients medical record information."

The American Pharmaceutical Association worries that the regulation may limit the ability of pharmacies to fill out first-time prescriptions expeditiously.

The Association of American Medical Colleges and the Academy for Health Services Research and Health Policy expressed concerns over the subjectivity in applying some of the criteria.

Some health insurance companies expressed similar concerns.

On the pro-privacy side, the GAO had interviewed or contacted the National Partnership for Women and Families, the Health Privacy Project, and the American Civil Liberties Union. They fear that the regulation permits physicians, hospitals and others to market commercial products and services to patients without their authorization. And this could erode confidence in the system’s ability to protect their privacy.

The American Medical Association, for its part, told the investigators that consent should be obtained before personal health information is used for any purpose.

Although the medical records rule was issued in the final days of the Clinton regime, some news reports indicate it would actually be a "costly burden," in the view of hospitals, insurance companies and health maintenance organizations. Many of them are lobbying against it for precisely the opposite reason than the one that caused Congressman Armey to urge its rejection. As he sees it, the proposal would threaten medical privacy of individuals.

Other members of Congress are saying, according to news reports, that privacy provisions in the rule are popular and that it "would be hard to reverse at this point."

Caught in the Middle

This could set up a "triangulation" situation where Secretary Thompson, hearing complaints on the one hand from those who think privacy protection is inadequate and, on the other hand, from those who think it goes too far, just might decide the best course is to approve it.

NewsMax.com is in possession of poll results from a survey conducted by Princeton University and commissioned by the California Health Care Foundation.

The survey reflects a deep suspicion on the part of many people who think we already have a medical privacy problem, with or without the new regulations.

Privacy Fears

One in five Americans believes his or her personal medical information has already been improperly released, and about half of those think it has caused them embarrassment or harm.

One in six has done something out of the ordinary to keep medical information confidential. These include doctor-hopping to avoid a consolidated record, withholding information, or paying out of pocket for care that is provided by insurance.

Two of three don’t trust government health plans, such as Medicare, to keep medical records confidential most of time.

Twenty-four percent of health care providers know of privacy violations.

Eleven percent of consumers say a family member paid out of pocket to avoid submitting a claim just to maintain privacy.

And there’s lots of anecdotal information out there that indicates such fears are not unduly paranoid.

One NewsMax.com reader tells us of a private investigator who has collected medical records from doctors and hospitals, paying anywhere from $80 to $300 a record. She built a database to be sold to whoever wanted the information. This person reportedly has tens of thousands of medical records from all over the region, selling to anyone willing to pay. The private investigator, needless to say, was quite a force to be reckoned with in her community.

This may be an extreme example. But regardless of the pros or cons of the proposed HHS rule, there are lots of folks out there who already feel they have little reason to trust the system to keep their medical records private.

NewsMax.com has an emergency petition you can sign to prevent this invasion of your privacy.

Also see: House Leader Demands Action Against Clinton Invasion of Medical Privacy and Federal Rule: Your Medical Records to Be Shared.

Read more on this subject in related Hot Topics:
Medical Privacy
Bush Administration

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