NewsMax.com Wires and NewsMax.com
Saturday, March 23, 2002

The administration is gutting privacy, critics protested.

Sen. Edward Kennedy, D-Mass., promised hearings and legislation to reinstate the mandatory consent forms.

"The administration has come down on the side of major health corporations at the expense of individuals," he charged Friday from the Senate floor.

"It's really unfortunate that HHS is proposing to eliminate the consent requirement," said Janlori Goldman, who directs Health Privacy Project at Georgetown University. "If people don't know what their rights are, how are they going to protect themselves?"

NewsMax.com has run a series of articles pointing out how the "privacy" regulations would actually damage privacy.

But Health and Human Services Secretary Tommy Thompson said in a statement Thursday that the move would "allow us to deliver strong protections for personal medical information while improving access to care."

Removing a Burden?

The requirement for prior consent on privacy practices has caused "serious unintended consequences," such as requiring patients to visit a pharmacy to sign a consent form before a prescription could be filled, the statement said. Also, doctors could refuse to treat patients who refused to sign their privacy consent form.

"To fix these problems, the proposal would promote access to care by removing the consent requirements for treatment, payment and health care operations that would interfere with efficient delivery of health care, while strengthening requirements for providers to notify patients about their privacy rights and practices.

"Patients would be asked to acknowledge the privacy notice, but doctors and other providers could treat them if they did not," according to HHS.

Keeping Parents Informed

The changes also would give parents greater access to their children's medical records.

The Clinton rule said minors who have the right under state law could exclude parents from decisions on abortions, drug treatment and mental health services, the Associated Press reported. Under the Bush revision, minors would not have such leeway except in unusual cases explicitly allowed by state law.

Full Circle

The Bush administration's plan to remove the consent provisions brings the law back to the original proposal, the chief privacy counsel for the Clinton administration told United Press International on Friday.

Peter Swire, a law professor at Ohio State University who is spending a year at George Washington University in Washington, said the revisions were getting a lot of public attention but really were adjustments that should be expected to any big regulation.

The privacy regulations are some of the most controversial parts of the Health Insurance Portability and Accountability Act of 1996, one of the most far-reaching pieces of health-care legislation passed in recent decades and a hallmark of the Clinton administration's health agenda.

The final rule required patients to sign consent forms after being advised of their physician's policy or hospital's policy on how their medical information would be shared and handled. Physicians and hospitals argued that consent would create a huge administrative burden for them, interfere with the patient-physician relationships and prevent people who refuse to sign a consent form from getting needed medical treatment.

"The vast majority [of the privacy regulations] are staying the same," Swire told UPI. "The public attention was focused on the consent, but that was a difficult issue all along."

Swire said the original Clinton proposal did not have a consent provision, which was included in the final rule after the administration received more than 50,000 comments on the proposed regulation.

"The announcement this week goes back to the original rule," Swire said.

A Matter of Convenience?

Joy Pritts, senior counsel for Health Privacy Project at Georgetown, said HHS could have tweaked the regulation to remove "a few unintended consequences," such as a requirement patients sign a consent form before family members can pick up a prescription for them, "without totally gutting the consent requirement."

Swire said the huge volume of comments resulted in many changes to the regulation, including a consent provision that "did not give patients any choice in the matter."

"No one ever intended to prohibit a family member from picking up your prescription," he said. "It was unclear in the Clinton rule due to imperfect drafting how that would work, but everyone wants family members to be able to do that."

"They haven't reached an acceptable compromise from a patient point of view," Pritts said.

Swire said the consent issue could have been modified without eliminating it but doubted that even without consent that "any person is going to see any different data" because of the change.

"The privacy safeguards really are prohibitions from sharing the data and those sharing rules haven't changed," he said.

Swire and Pritts said the full effect of the changes would not be clear until the revised regulation is published in detail, expected next week in the Federal Register.

Swire said while provisions restricting the use of patient information for marketing purposes remain, she was concerned the revised proposal allows physicians to provide that information to other entities for the purpose of disease management.

'Fuzzy'

"That is a fuzzy term," Pritts told UPI. "It depends on how broadly it is defined."

For example, disease management might include a patient's medication regimen. Information passed along could result in letters from pharmaceutical companies or drug stores regarding specific medications and raise concerns that patients might be pressured to accept a less expensive drug or a different one an insurer might be able to buy more cheaply.

Pritts said that though the minimum necessary standard - limiting patient information to be shared to only the minimum of what is needed to provide care - remained, there was little of value left. She said the proposal would only have forced physicians to create a policy about what information they would share.

"There was a lot of hyperbole surrounding it, and now it seems there is nothing left of that," she said. "The impact of that is it makes the standards less meaningful."

The revisions keep restrictions on oral communication and the need to keep information sharing to a minimum, HHS said, but specifically include assurances physicians could discuss a patient's treatment with other doctors and professionals involved in that care. As long as appropriate measures were in place to ensure the information remained private, HHS said, incidental disclosures, such as another patient hearing some other patient's information, would not result in a violation of the rule.

Copyright 2002 by United Press International.

All rights reserved.

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