Don't let Bush plan strip you of medical privacy

By Deborah C. Peel

SPECIAL TO THE AMERICAN-STATESMAN

Thursday, April 11, 2002

Patients need communications with their doctors to be kept private. That simple idea is the foundation of medical practice and the Hippocratic Oath. Centuries of common law and state laws have made the right to consent into the law of our land.

But now the Bush administration disagrees. It wants to eliminate the right to consent to the release of medical records. Every American would lose the right to keep his/her medical and mental health records private.

Last month, the administration proposed changing the Health Insurance Portability and Accountability Act to eliminate the right to consent.

If this proposal becomes law, all medical records will be treated as if they are government property, not individual property. Even if you refuse consent to release your records or pay for treatment out-of-pocket to ensure privacy, the government can give "regulatory permission" for release and you will never know who sees them.

How will the lack of privacy make relationships with doctors dangerous?

Without the right to refuse consent, no one can stop the flow of medical records from doctors' offices to hundreds of health-care corporations: data warehousers, health plans, pharmacy benefits managers, drug companies, financial institutions, marketers, employers, etc. Doctors will become conduits for endless requests for mountains of detailed information. They won't be allowed to keep our secrets.

Stripped of privacy, we won't tell our doctors anything that can be used to harm us. Yet the very things we hold back may be critical for effective treatment, or to save lives.

Stripped of privacy, every new symptom or test becomes a potential bomb that could set off massive discrimination, job loss or even bankruptcy if it signals an expensive, chronic or stigmatized illness. Which is worse? Being sick or being stripped of privacy for being sick? What a terrible choice to make when you're ill: "Can I live through this, or should I risk my future and my family's financial well-being by getting medical or mental health care?"

Who will have blood tests if employers can learn of a sexually transmitted disease or an early pregnancy? Who will have treatment for diabetes if it means they can lose their credit or can't buy a car? Who will get genetic testing if the results are used to cancel life insurance policies, and who will take medications that later disqualify them from attending law school, flight school or entering the military?

These scenarios sound impossible, but they aren't.

We don't have to imagine how bad things will get when medical records are open books. We already know. Privacy violations have already harmed an astonishing number of people with mental illnesses or addictions. Privacy breaches are the most devastating for illnesses that are feared or stigmatized.

Entire medical records will become available online and far and wide, when "regulatory permission" transforms former privacy breaches into "access." Eliminating the right to consent will eliminate the right to privacy.

But the proposed changes pose other serious problems:

* Stronger state laws for medical privacy and consent will be overridden.

* The ethics of every medical profession will be violated by eliminating consent.

* Payors can condition payment for physical therapy following knee surgery on the release of mental health records. Doctors must send records when "regulatory permission" is given, regardless of the patient's wishes.

* Health plans can require doctors to release all their medical records, private-pay or not, current or past, for physician credentialing or "health-care operations."

* Pharmacies can market drugs to us directly because those privacy violations have been renamed "recommending treatment."

Section 164.506 of the proposed Privacy Rule covering consent should be strengthened, not eliminated. Act now to protect your right to medical privacy and right to consent by sending your comments to Health and Human Services at http://www.hhs.gov/ocr/hipaa/. Comments are being taken until April 26.

Privacy is a constitutional right. Eliminating the right to consent is the single most damaging threat to our privacy. Communications between doctors and patients deserve at least the same degree of privacy that Vice President Dick Cheney needs to communicate with Enron executives.

Peel lives in Austin.