New Privacy Regulations Allow Data to be Used for Sales Pitches
The new privacy rules for medical records issued by the Clinton administration last month will for the first time explicitly allow health care providers and their business associates to use personal health records for marketing and fundraising, the Washington Post reports. According to the Post, the exemptions were included in the final rules after a "months-long public relations effort by the industry." The exemptions allow physicians, hospitals, clinics and other providers and associates to send patients individualized health information and information about products. For example, the Post says a patient being treated for a sexually transmitted disease could receive telemarketing calls promoting condoms or new drugs. The rules also give hospital-affiliated foundations access to patient information for fundraising initiatives, which raise billions of dollars annually through solicitations. Pharmacies will be permitted to share patients' prescription records with business associates, which could target patients with "educational materials" sponsored by drug makers. The Post reports that some consumer advocates fear the new rules will foster the use of records for marketing by "specifically allowing activity that in the past was often constrained by ethical or business concerns." Critics of the exemptions contend that patients should have the right to deny uses of their medical records which do not directly apply to their health care. Patients will have the right to say no to marketing or fundraising, but they will have to address each individual entity that has contacted them in order to exercise that right.
Supporters of the exemptions note that providers will now have to determine that products provide a health benefit to patients before making contact. Marketers and fundraisers also will be required to disclose the source of personal information, to describe their financial benefit and to explain why the individual was targeted for the promotion. An HHS spokesperson said that the agency faced the challenge of distinguishing between educational materials and marketing promotions, and concluded that getting health information to patients "was so important" the department decided to be more flexible on the issue than the draft rules released in 1999. He also said that officials believe providers will be constrained from "doing anything that might offend patients," and that industry pressure played no role in choosing to include the exemptions.
The Post reports that several industry leaders have pressed for changes to the draft regulations, which would have prevented many of the marketing and fundraising activities allowed under the final rule and would have required providers to get prior authorization from patients before releasing their information for targeted promotions. Among the most aggressive groups pressing for change to the draft rules were pharmacy benefit managers, insurers, the American Hospital Association, and the Association for Healthcare Philanthropy. Some critics of the rule are encouraging states to write tougher rules that would override the federal regulations (O'Harrow, Washington Post, 1/16).This is part of the California Healthline Daily Edition, a summary of health policy coverage from major news organizations. Sign up for an email subscription.