New Medical Privacy Rules – Will Patients Be Exposed?

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From the 8-15-2002 Kaiser Daily Health Policy Report:

1. Providers, Rights Advocates Weigh In On Possible Effects of New Medical Privacy Rules

Access this story and related links online: http://www.kaisernetwork.org/daily_reports/rep_index.cfm?DR_ID=12911

Although privacy advocates "hit the roof" after the Bush administration announced medical privacy regulations that are less restrictive than standards first proposed by the Clinton administration, hospitals and health care providers "applaud[ed]" the rules, which became official on Aug. 14, saying they "will maintain patients' privacy and could lead to better health care," the San Francisco Chronicle reports (Colliver, San Francisco Chronicle, 8/15).

The rules, which take effect next spring and apply to all electronic records but not those kept on paper, permit personal medical files to be shared only for purposes of treating patients, paying bills and carrying out various health care operations. The regulations say that only the smallest amount of information should be disclosed for specific purposes and that patients' names should be left out whenever possible. According to the guidelines, providers must receive patients' approval before revealing private information in "nonroutine" cases. However, unlike the Clinton administration proposal, providers can disclose medical records without patients' written permission (Kaiser Daily Health Policy Report, 8/12).

Many hospitals and providers say the rules "offe[r] a balanced approach to privacy," the Chronicle reports. Michael Evans, senior vice president and chief risk officer at California-based Sutter Health, said, "We're all in favor of privacy, but there comes a point in time where you're so private you can't do anything." Craig Lanway, chief information officer for Hill Physicians Medical Group in California, added, "The way [the regulations] have been watered down, so to speak, will make the implementation easier from the provider perspective."

Confusion Ahead?

Several aspects of the rules, however, cause concern for consumers' rights advocates, the Chronicle reports. Insurance companies could have greater access to medical records, and the regulations, while prohibiting pharmacies from selling patient information to drug companies, could allow drug makers to pay pharmacies to promote certain treatments. In addition, certain language included in the guidelines is vague. "There's going to be a lot of confusion going forward. We're going to have to see how the courts and HHS wind up interpreting these things in the future," Kazuhiko Sano, an attorney at JK Health Information Privacy Advisors in San Francisco, said (San Francisco Chronicle, 8/15).

Still, while "patients aren't likely to notice many changes" under the new rules, it will be harder for third parties to obtain information about a patients' condition, the Colorado Springs Gazette reports (Radford, Colorado Springs Gazette, 8/15). And although the regulations are expected to save $30 billion in health care expenses over the next 10 years, implementing the guidelines will create "some degree of hassle" (Webster, Detroit News, 8/15). The rules, which give patients the right to view and make corrections to the records, will likely have a large impact on operational procedures, the Chronicle reports. "It's going to be an administrative nightmare," Evans said, adding, "You're talking about a tracking system that no one has had before" (San Francisco Chronicle, 8/15).

Reaction

The following are summaries of several editorials on the new privacy regulations:

*Albany Times Union: The new rules have "further eroded" patients' medical privacy rights, and the guidelines could have unintended negative consequences, the Albany Times Union states in an editorial. For example, patients might stop sharing some health information with providers, or doctors might stop recording "embarrassing" information about their patients because of fears that it would be disclosed to third parties.

While the new rules should be commended for establishing "welcome restrictions" on using patient information to market drugs, the editorial concludes that the regulations "hardly answe[r] the question of why the White House had to give with one hand and take away with the other," the editorial concludes (Albany Times Union, 8/13).

*Contra Costa Times: The new privacy rules contain "shortcoming[s] that nee[d] to be corrected" before the guidelines go into effect, a Contra Costa Times editorial states. Any regulations that allow providers to share medical records with insurance companies are inadequate, the Times writes, and the White House should instead adopt the provisions included in the Clinton administration guidelines. The Times "fail[s] to see the health care purpose of allowing doctors and hospitals to divulge individual medical information to insurance firms" and concludes that the rules should "give a higher priority to individual privacy than to the profits" of health plans (Contra Costa Times, 8/15).

*Los Angeles Times: In general, the new privacy rules are "reasonable" and provide patients with "mild protections [that] are an improvement over the current anything-goes system," a Los Angeles Times editorial states. But several "tweaks" made by HHS Secretary Tommy Thompson to the original Clinton administration rules — such as allowing "health care operators" access to medical records — "leave patients needlessly vulnerable."

Rep. Ed Markey (D-Mass.) and Sen. Edward Kennedy (D-Mass.), who are preparing legislation on the issue, should "let most of Thompson's changes stand" but should "yield no ground on one principle: Barring medical emergencies, patients should be asked before their health records are disclosed." The Times concludes that legislators and officials should "be able to find a way to preserve medical efficiency without declaring open season on health privacy" (Los Angeles Times, 8/15).

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