MEDICAL PRIVACY: Who Has Authority, Who Gets Access?

      Federal preemption of existing state laws and law enforcement access to medical records were the focus of yesterday's seventh and last hearing prior to mark up on three medical records privacy bills pending before the Senate Health, Education, Labor and Pensions Committee. Sen. Robert Bennett (R-UT), sponsor of one of the measures, said, "I see no reason to pass medical records confidentiality legislation if there is not full and complete federal pre-emption of state law." Bennett's bill, which does just that, also prohibits states from enacting more stringent protections. But Sen. Patrick Leahy (D-VT) testified that his bill "makes room for the many possible future threats to medical privacy that we may not anticipate today." He added, "As medical and information technology moves forward into the next century, we must maintain the public's right to meet future technological challenges to privacy with stronger medical privacy laws closer to home." With regard to access by law enforcement officials, both bills, in addition to Sen. Kennedy's (D-MA) legislation, would impede law enforcement officials' efforts to combat healthcare fraud and other crime, Justice Department officials said. CongressDaily/A.M. reports that each of the bills "would require law enforcement authorities to obtain a court order, subpoena, or at least some third-party permission before personal medical information could be released." Bennett said that while "appropriate checks within the system" would be necessary, "There are times when, in the course of their duty, that law enforcement authorities need access to medical records" CongressDaily/A.M., 4/28). The committee heard five panels of witnesses, which included Ronald Weich for the American Civil Liberties Union, Dr. Robyn Shapiro of the Center for the Study of Bioethics at the Medical College of Wisconsin and Genentech's Dr. John Curd, vice president of clinical development (committee release, 4/27).