George W. Bush has flip-flopped once again, this time on the issue of patient privacy. A year ago, Bush announced he would not delay the medical privacy rule promulgated by the Clinton administration after threatening to do so. For Bush, this was an unusual decision: It irritated huge corporations and pleased public-interest groups. At the time, observers questioned whether Bush made this decision because he really valued medical privacy or because he felt he had already reversed too many Clinton policies (arsenic in drinking water, ergonomic regulations, and global warming) and had to do something to appear pro-consumer.
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Bush has revealed his answer. On March 21, Tommy Thompson, secretary of the Department of Health and Human Services, announced that the administration was proposing changes to the medical privacy rule that would effectively destroy its modest privacy protections. Thompson, of course, did not own up to what he was doing. He characterized the changes as common-sense revisions that eliminate serious obstacles to patients getting needed care and services quickly while continuing to protect patients privacy.
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The Clinton regulation, scheduled to take effect in April 2003, is bad enough. It offers patients protection by requiring that doctors get patient consent before turning patient files over to HMOs (and to numerous other third parties). But the Clinton rule weakens this protection by letting HMOs refuse to pay for treatment of patients who wont sign a statement authorizing their doctors to deliver patient records to HMOs.
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The Clinton rule also offers patients no protection from privacy invasion by marketers. Doctors and pharmacists would be free, for example, to give or sell information about their patients to drug companies so that they can send letters to patients with particular diseases urging them to buy particular drugs. Only after their privacy has been breached could patients demand that marketers not solicit them again.
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But these modest protections were too much for Bush. His proposal would sabotage both parts of the Clinton rule: eliminating the requirement that doctors get consent from patients before shipping their files off to HMOs, and substantially reducing the number of marketers that would have to take patient names off their solicitation lists upon receiving a complaint from a patient. Instead HHS promises to require clinics and hospitals to give patients lists of the types of third parties who will be looking at their files.
————–
In a jargon-riddled announcement of the proposed rule changes published in the Federal Register on March 27, HHS offered two justifications for stripping patients of their right to decide who will look at their medical records: (1) patients expect HMOs to seize their files; and (2) the cost of the consent requirementmeasured in dollars, delayed care and diminished qualityoutweighs the benefits that HMOs allegedly confer upon society by commandeering patient files. The first argument is dishonest; patients may expect HMOs to take their files, but that is hardly an argument for letting the practice continue. The second argument is merely false.
————–
HHSs argument that the consent requirement will force doctors and other providers to delay care is based on a few HHS horror stories that could be fixed with amendments to the privacy rule. HHSs favorite illustration is the one about the sick patient who sends a friend to pick up prescription drugs from a pharmacy. HHS claims that the pharmacist would have to refuse to give the drugs to the friend until she came back with a consent form signed by the patient. It is easy to imagine amendments to the rule that would hold pharmacists harmless in situations like this. Sacrificing the entire patient consent requirement to avoid writing an exception makes no sense.
————–
HHSs claim that HMOs use patient files to reduce cost and improve quality is just warmed over HMO propaganda. HMOs do use patient files all the time to argue with doctors about whether patients need this or that medical service, but this very process (called utilization review) drives up the administrative costs of HMOs and of doctors offices. These higher administrative costs offset the savings achieved at the expense of patients and, for this reason, there is no solid evidence that HMOs have reduced costs.
————–
But the constant invasion of patient privacy by HMOs does more than drive up costs; it actually reduces quality because many patients, fearing loss of privacy, refuse to divulge information to their doctors or refuse to seek medical care at all. Mental health professionals are furious about Bushs new policy. Jim Pyles, an attorney representing the American Psychoanalytic Association, told the Boston Globe, I believe it will cause the greatest damage to the quality of health care in this country of any government action in my lifetime.
————–
There is no question that requiring doctors to get patient consent before turning medical records over to HMOs and other third parties will raise the nations $1.3 trillion health care bill by a relatively small amount. But is that reason enough to sacrifice patient privacy? In fact, given how little patients and premium-payers have gotten from HMOs, shouldnt we instead be debating whether to sacrifice HMOs?
————–
Public comments must be submitted to HHS by April 26 (messages by e-mail may be submitted at http://www.hhs.gov/ocr/hipaa). If public outrage doesnt persuade Bush to preserve patient privacy, this issue needs to go back to Congress. The only reason Clinton was in a position to write a defective privacy rule, and that Bush is now in a position to destroy patient privacy single-handedly, is that Congress passed a law in 1996 authorizing HHS to promulgate a privacy rule if Congress failed to pass a law by 1999.
————–
Privacy in general, and medical privacy in particular, has the potential to be a significant political issue if one party or the other would stake out a strong pro-privacy position. So far, neither party has done so, but Sen. Ted Kennedy has announced he will introduce legislation to keep the consent requirement intact. He should be loudly applauded. If Democrats were looking for an issue to challenge the Bush administration, this could be it.
————–
Bush has revealed his answer. On March 21, Tommy Thompson, secretary of the Department of Health and Human Services, announced that the administration was proposing changes to the medical privacy rule that would effectively destroy its modest privacy protections. Thompson, of course, did not own up to what he was doing. He characterized the changes as common-sense revisions that eliminate serious obstacles to patients getting needed care and services quickly while continuing to protect patients privacy.
————–
The Clinton regulation, scheduled to take effect in April 2003, is bad enough. It offers patients protection by requiring that doctors get patient consent before turning patient files over to HMOs (and to numerous other third parties). But the Clinton rule weakens this protection by letting HMOs refuse to pay for treatment of patients who wont sign a statement authorizing their doctors to deliver patient records to HMOs.
————–
The Clinton rule also offers patients no protection from privacy invasion by marketers. Doctors and pharmacists would be free, for example, to give or sell information about their patients to drug companies so that they can send letters to patients with particular diseases urging them to buy particular drugs. Only after their privacy has been breached could patients demand that marketers not solicit them again.
————–
But these modest protections were too much for Bush. His proposal would sabotage both parts of the Clinton rule: eliminating the requirement that doctors get consent from patients before shipping their files off to HMOs, and substantially reducing the number of marketers that would have to take patient names off their solicitation lists upon receiving a complaint from a patient. Instead HHS promises to require clinics and hospitals to give patients lists of the types of third parties who will be looking at their files.
————–
In a jargon-riddled announcement of the proposed rule changes published in the Federal Register on March 27, HHS offered two justifications for stripping patients of their right to decide who will look at their medical records: (1) patients expect HMOs to seize their files; and (2) the cost of the consent requirementmeasured in dollars, delayed care and diminished qualityoutweighs the benefits that HMOs allegedly confer upon society by commandeering patient files. The first argument is dishonest; patients may expect HMOs to take their files, but that is hardly an argument for letting the practice continue. The second argument is merely false.
————–
HHSs argument that the consent requirement will force doctors and other providers to delay care is based on a few HHS horror stories that could be fixed with amendments to the privacy rule. HHSs favorite illustration is the one about the sick patient who sends a friend to pick up prescription drugs from a pharmacy. HHS claims that the pharmacist would have to refuse to give the drugs to the friend until she came back with a consent form signed by the patient. It is easy to imagine amendments to the rule that would hold pharmacists harmless in situations like this. Sacrificing the entire patient consent requirement to avoid writing an exception makes no sense.
————–
HHSs claim that HMOs use patient files to reduce cost and improve quality is just warmed over HMO propaganda. HMOs do use patient files all the time to argue with doctors about whether patients need this or that medical service, but this very process (called utilization review) drives up the administrative costs of HMOs and of doctors offices. These higher administrative costs offset the savings achieved at the expense of patients and, for this reason, there is no solid evidence that HMOs have reduced costs.
————–
But the constant invasion of patient privacy by HMOs does more than drive up costs; it actually reduces quality because many patients, fearing loss of privacy, refuse to divulge information to their doctors or refuse to seek medical care at all. Mental health professionals are furious about Bushs new policy. Jim Pyles, an attorney representing the American Psychoanalytic Association, told the Boston Globe, I believe it will cause the greatest damage to the quality of health care in this country of any government action in my lifetime.
————–
There is no question that requiring doctors to get patient consent before turning medical records over to HMOs and other third parties will raise the nations $1.3 trillion health care bill by a relatively small amount. But is that reason enough to sacrifice patient privacy? In fact, given how little patients and premium-payers have gotten from HMOs, shouldnt we instead be debating whether to sacrifice HMOs?
————–
Public comments must be submitted to HHS by April 26 (messages by e-mail may be submitted at http://www.hhs.gov/ocr/hipaa). If public outrage doesnt persuade Bush to preserve patient privacy, this issue needs to go back to Congress. The only reason Clinton was in a position to write a defective privacy rule, and that Bush is now in a position to destroy patient privacy single-handedly, is that Congress passed a law in 1996 authorizing HHS to promulgate a privacy rule if Congress failed to pass a law by 1999.
————–
Privacy in general, and medical privacy in particular, has the potential to be a significant political issue if one party or the other would stake out a strong pro-privacy position. So far, neither party has done so, but Sen. Ted Kennedy has announced he will introduce legislation to keep the consent requirement intact. He should be loudly applauded. If Democrats were looking for an issue to challenge the Bush administration, this could be it.
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Kip Sullivan sits on the steering committee of the Minnesota Universal Health Care Coalition. He is the author of The Health Care Mess, available at authorhouse.com.
