Published in American Medical News, Vol. 40, No. 38, October 13, 1997, Page 3.

Washington - Physicians must be a key voice in the current debate over new federal recommendations on medical record confidentiality, according to Sen. Bill Frist, (R, Tenn.).

The recommendations to Congress, released last month by Dept. of Health and Human Services Secretary Donna E. Shalala, PhD, attempt to address the public's concern that health information privacy is jeopardized by medical records computerization.

"What electronic transmission of data has done is introduce challenges from a social component that you ... can address much better than my colleagues in the United States Senate because you are the person on the front line," said Dr. Frist, speaking last month at the AMA's Political Grassroots Conference in Washington, D.C.

The issue must be discussed in a public forum, he said. "That public forum has got to have you in the room, the person who wrote the medical record, who interviewed the patient, who really is responsible to see that the patient gets the very best care."

The Kassebaum-Kennedy health insurance reform law, passed last year, mandated that HHS report to Congress on how to protect medical records privacy. If lawmakers do not enact legislation by August 1999, the law requires the agency to impose its own safeguards.

Concerns about confidentiality.
Dr. Shalala says that her proposal balances patient privacy protections with the need to share medical information for patient care, insurance payment, public health efforts, research and law enforcement.

Although many groups say the recommendations are a good first step toward that goal, others contend that they would do practically nothing to safeguard patient information. In fact, the recommendations may even erode current protections, they warn.

HHS' proposal would curb the worst abuses of medical information - the buying and selling of patient records, said Kathleen Frawley, vice president of legislative and public services for the American Health Information Management Assn.

"The area where we have seen the most problems is when the information leaves the four walls of the doctor's office or the hospital," she said. "After that, all bets are off."

Insurers and pharmacy benefits programs sometimes sell patient-identifiable medical information to groups that target specific patients or doctors to try to sell their products or influence physician ordering patterns, she said.

Under the proposed recommendations, "all these commercial transactions where people are buying and selling medical information would be outlawed," Frawley said. The proposal would create criminal penalties for obtaining protected health information with the intent to sell it or use it for a profit ...

Some groups fear that in its effort to allow medical information disclosure for health care, payment, research, public health and law enforcement, the HHS proposal would fail to strengthen patient privacy rights and could even weaken some protections.

"Why not call this a legitimizing access (proposal) because that's what it is," said Denise Nagel, MD, executive director of the National Coalition for Patient Rights. The recommendations would put into law egregious practices, she added.

"(Dr. Shalala) goes so far as to say the health system will deteriorate if we don't recognize the age-old right to privacy, and then she doesn't suggest recognizing it in the law," Nagel said. "She talks about trading the right of privacy for all these other national priorities without recognizing that privacy is a national priority."

Patient consent undermined.
By allowing the sharing of patient-identifiable health information in certain circumstances, the recommendations could undermine the concept of patient consent, some groups contend.

"The administration proposal, in effect, ignores the historic, time-tested principle of requiring the informed consent of patients before personal medical information isdisclosed," said Herbert S. Sacks, MD, president of the American Psychiatric Assn.

The AMA has concerns about the proposal.

"It's not only a missed opportunity to clarify law enforcement (rules), but it looks like we're losing some protections we have now," said AMA Trustee Donald J. Palmisano, MD.

Patients' right to privacy should be honored unless they have given informed voluntary consent to disclose the information, he said.

That should apply to disclosure between providers and insurers, Dr. Palmisano said.

"We understand that insurers need information, but we don't want it to be overly broad," he said.

The AMA believes that "the patient-physician relationship is based first on trust," Dr. Palmisano said. "Confidentiality is the cornerstone of good medical care." Without trust, patients won't disclose information doctors need to make diagnoses, he added.

Several groups, including the AMA, the American Hospital Assn., the American Civil Liberties Union and the American Psychiatric Assn., criticized Dr. Shalala for failing to propose strict federal rules regarding medical information disclosure to law enforcement agencies as a substitute for the current hodgepodge of state regulations.

"The administration would allow police 'paparazzi,' without permission and without restraint, to prowl through the records of innocent citizens searching for that one snapshot in a thousand that indicates possible wrongdoing," Dr. Sacks said.

The proposal would allow law enforcement organizations to share information without patient consent.

For example, federal officials investigating health care fraud who come across a file indicating that a patient abuses drugs could turn that information over to the local police, Dr. Frist said.

The AMA opposes the use of medical records for such "fishing expeditions," Dr. Palmisano said.

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John H. Frenster, MD
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