Critics Target ‘Big Holes’ in HHS Privacy Rules
While the Clinton administration last month issued broad new medical privacy regulations establishing the first federal laws that prevent doctors, hospitals and health plans from releasing such information without patient consent, privacy experts have found "big holes" in the rules, including a provision that will allow drug companies, hospitals and for-profit clinics to use medical records in marketing campaigns, the Bergen Record reports. "I'm shocked," privacy consultant and National Committee on Vital and Health Statistics member Robert Gellman said, adding, "These rules authorize the use of patient information for marketing without advance patient consent." Zoe Hudson, senior policy analyst at Georgetown University's Health Privacy Project, said, "Honestly, this took us by surprise. It seems pretty clear that [the provision] allows marketers to use health information at least once without patient consent," adding, "It's disturbing that this loophole is in there." Although marketers must allow consumers to refuse future mailings, phone calls or other solicitations, most individuals will not "take the trouble" to stop such campaigns, Gellman said. In addition, the rules not only allow health care providers and insurers to use medical records for marketing their own products, but also those of "a third party." HHS spokesperson Craig Palosky said that the marketing provision will allow doctors and other providers to inform patients about new drugs and treatments. "We want to protect a doctor's ability to communicate with patients," he said, pointing out that the rules require health providers and insurers to "identify themselves" when marketing products on behalf of a third party. "All the mailings will say, Dr. Smith is sending you this letter, and this is what Dr. Smith is saying," Palosky added. According to Medical Society of New Jersey spokesperson Dr. Nancy Mueller, however, most physicians would not send such information in the mail. "I don't think you can give a person a change in their therapy without a face-to-face interaction. You need to talk about side effects interactions with their other medicines," she said. Mueller added that marketing campaigns that use medical records to sell products violate patient privacy and do not "belong in the public realm." In addition, Hudson warned that such marketing fosters more distrust in the health care system among patients and stirs "more anxiety" over privacy concerns (Davis, Bergen Record, 12/23).
Opponents of the new patient privacy regulations also pointed out that the rules allow government agencies, such as the CDC, to have access to individuals' medical records -- a "clear expansion of intrusion by the public sector." According to Twila Brase, president of the Citizens' Council on Health Care, "Most of the press is writing about what a victory this is for consumers. But what (government) has done is they've left medical records open for themselves and shut it down for private entities." The rules, for example, would allow the CDC to request patient information from doctors, hospitals and insurers to track public health trends or outbreaks (Lore, Atlanta Journal-Constitution, 12/26).
Several national and regional newspapers have weighed in on the new patient privacy regulations. Excerpts of their comments appear below.
New York Times: An editorial argues that although the new rules may "need tightening in future years," they provide patients "enormous power to control the release of their own medical information, a long overdue step to ensure privacy." The editorial points out, however, that health plans will face a number of "costly" obstacles to implementing the regulations -- including lack of "uniformity" among stricter state laws -- that could drive up "soaring" premiums. According to the Times, Congress, which has the power to override state regulations, may have to "revisit the matter if lack of uniformity becomes a serious problem" (New York Times, 12/27).
Baltimore Sun: According to the Sun, the new medical privacy rules -- a "matter of common sense" -- will help to mitigate an "appalling history of abuse and commercial manipulation of private medical data." The editorial admits, however, that the regulations have "some holes" and may "need some fine-tuning." Still, the Sun concludes, "Trust in confidentiality between patient and provider is the basis of effective health care treatment. That is what these needed regulations aim to protect" (Baltimore Sun, 12/27).
Newsday: While "doctor-patient confidentiality ain't what it used to be," a Newsday editorial contends that the problem should "diminish sharply" under the new rules. In addition, according to Newsday, new "stiff penalties" should prevent an expectant mother from "getting come-ons for baby products before she's even told her husband he'll soon be a dad." The editorial concludes that the regulations, while "not perfect," will offer patients "new protection against hucksters who just want to make a buck off [their] medical chart[s]" (Newsday, 12/26).
San Francisco Chronicle: The Chronicle calls the new medical privacy regulations a "big step" toward preserving the "near-sacred bond" between doctors and patients, making patients the "gatekeepers" of their own medical records. The editorial also urges Congress and the incoming Bush administration to close remaining "loopholes," such as a patient's right to sue for improper disclosures. Admitting that the rules "leave room for improvement," the Chronicle calls them a "solid national standard of patient privacy that is vital to health care and long overdue" (San Francisco Chronicle, 12/24).
- Santa Rosa Press-Democrat: While a Press-Democrat editorial concedes that the rules may "place further burdens on a weak health care industry, drive up costs and slow important research," they call these consequences a "small price to pay" for providing patients with a "modicum of control" over their medical records. The editorial also points out that President-elect Bush "would be foolhardy to step into the breach and overturn these important regulations," despite cries from the health care industry. The Press-Democrat concludes that in an industry that often "treats people more like a commodity than a customer, the new rules "strike an important blow for patients' rights" (Santa Rosa Press-Democrat, 12/24).
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