Bill Clinton was, as Michael More reminded us, the best Republican president we’ve had in a generation. Even so, that’s not good enough for the Bush administration. On 9 August, President Bush rolled back Clinton’s medical data privacy protections. The new rule covering the privacy of individually identifiable health information becomes effective 14 April 2003 and carries the full force of federal law. Penalties for noncompliance include civil and criminal penalties, up to a US$250,000 fine and a ten year prison sentence.
The core concept of the Clinton rules required all health care providers to obtain written consent from patients before disclosing personal medical information. Under the Bush II rules, the consent provision is eliminated and health providers are required only to notify patients of their rights and make a “good-faith effort to obtain a written acknowledgment of receipt of the notice.”
“The rule protects the confidentiality of Americans’ medical records without creating new barriers to receiving quality health care,” said U.S. Department of Health and Human Services (HHS) Secretary Tommy Thompson in a media release. “It strikes a common sense balance by providing consumers with personal privacy protections and access to high quality care.”
The HHS media release goes on to say that the new rule modifies the privacy regulations it issued in December 2000 because of “serious unintended consequences of the rule that would have interfered with patients’ access to quality care.” According to HHS, patients “would have been required to visit a pharmacy in person to sign paperwork before a pharmacist could review protected health information in order to fill their prescriptions.” Thompson was even more bellicose: “The prior regulation, while well-intentioned, would have forced sick or injured patients to run all around town getting signatures before they could get care or medicine. This regulation gives patients the power to protect their privacy and still get efficient health care.” This is disingenuous. Patients are generally required to sign for every prescription they receive, and they (or a guardian) are also required to sign consent forms and payment responsibility forms before medical procedures are performed.
Predictably, trade organizations for the insurance and health maintenance organization industry were ecstatic in their praise for the new rules. The consensus among most health care policy experts appears to be that while the new rule minimally strengthens the prohibition on disclosing individual health information for marketing purposes, some gaping loopholes remain. For instance, “the regulations still allow a drug company to pay a pharmacy to act as its agent and allow the pharmacy to do the marketing without disclosing the financial arrangement,” according to Rep. Edward Markey (D-Massachusetts), co-chair of the Congressional Privacy Caucus.
In its account, the New York Times reported that Terry McAuliffe, chairman of the Democratic National Committee, said in a recent speech that “the White house seemed to worry less about the privacy of medical records than about the secrecy of Vice President Dick Cheney’s energy task force…. It’s O.K. to reveal personal medical information about the American people, but when the oil companies meet with policy makers to ask for special favors, that’s guarded like a state secret.”
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