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New Health Record Rules May Limit Right to Privacy

White House to change standards over access to medical records

FRIDAY, March 22, 2002 (HealthDayNews) -- Doctors, health insurers and other groups won't need your expressed written permission before sharing your private medical information under new rules proposed yesterday by the Bush Administration.

Saying the hoops involved in obtaining prior consent could jeopardize patient care, the White House wants to allow sharing of health information so long as people are first notified orally or in writing about the disclosure.

Although there is a brief period when the public can comment on the administration's plan, its April 2003 start date is arbitrary. President Bush doesn't need congressional consent to implement the rules.

The Bush administration had earlier endorsed the idea of a consent form, which was the centerpiece of a Clinton administration plan that has yet to go into effect. But the White House said the health care industry complained that the requirement would hinder care.

According to the Bush administration, pharmacists might be prevented from dispensing prescriptions to family members of patients who hadn't signed a privacy consent form, and some doctors might refuse to treat people who declined to do so. The form might also delay referrals to specialists.

Reaction from those with opposing views was predictable. Represenatives from the health insurance and medical professions called the new plan a workable compromise, while a health consumer activist called the measure a "giant... scam."

Under the new rules, health care providers and entities could treat patients and share their information for billing and other non-marketing purposes so long as they had notified them of their privacy rights. Patients would be asked to verify in writing that they'd been informed, but could receive care before doing so.

"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," Health and Human Services Secretary Tommy Thompson said in a statement announcing the proposed shift.

The change could also make it easier for parents to monitor the medical care of children -- including abortions and treatments for drug and alcohol abuse. Under the Bush rule, state laws would govern how much access parents have to such information.

The April 2003 rules are for most covered groups, and April 2004 will be for small health plans. The rules will now undergo a 30 day public comment period, after which the administration will make a final, legally binding rule.

Once in effect, the rules will carry both civil and criminal penalties for violators, including fines of up to $250,000 and jail terms of up to 10 years.

Health industry groups reacted positively to the Bush proposal. Dick Davidson, president of the American Hospital Association, said in a statement Thursday that the new rules "will help restore much-needed balance between protecting patient privacy and giving patients access to responsive health care."

"Hospitals and consumer research results confirm that the [consent] forms would have been a paperwork hassle without providing any additional privacy rights or protections for patients," Davidson said.

"We definitely think this is a big step forward in terms of simplifying a very burdensome process," said Kate Sullivan, director of health care policy for the U.S. Chamber of Commerce.

Mary Grealy, president of the Healthcare Leadership Council, a Washington, D.C.-based coalition of health care industry executives, called the White House plan a "workable compromise" sought by everyone from consumers to physicians and insurers. "No longer does an onerous prior consent process threaten to disrupt the delivery of health care to patients," Grealy said in a statement.

But patient privacy advocates said they were troubled by the change. Sen. Edward Kennedy, D-Mass., told the Associated Press that the prior consent requirement was a "core part" of the Clinton-era privacy rules.

Dr. Deborah Peel, president of the National Coalition of Mental Health Professionals and Consumers, said the rules were a sop to insurance companies, the pharmaceutical industry and marketers.

"When the public figures out that the Bush administration has taken away their right to consent to the release of the most personal information that exists about then, they're going to be outraged," Peel said.

Peel called the notion that consent forms make patient care burdensome a "giant health insurance industry scam" and a "bald lie."

Doctors and hospitals that handle Medicare -- in other words, most providers in America -- have long been used to dealing with consent forms, she added. "It's not a problem at all for physicians. Who it's a problem for are the commercial interests who want to market and use your information."

What To Do

For more on the proposed rule change, try the U.S. Department of Health and Human Services.

You can also visit the Health Privacy Project at Georgetown University.

SOURCES: Interviews with Kate Sullivan, director of health care policy, U.S. Chamber of Commerce, Washington, D.C.; Deborah Peel, M.D., president of the National Coalition of Mental Health Professionals and Consumers, Austin, Texas; Healthcare Leadership Council; American Hospital Association; U.S. Department of Health and Human Services, March 21, 2002; Associated Press, March 22, 2002
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