In December, President Clinton announced what were supposed to
be final regulations governing medical privacy. The regulations
contained two new policies: one good, one bad. The good policy:
The regs require HMOs to get patient consent before seizing their
medical records. The bad policy: The regs permit doctors, hospitals,
pharmacists and other providers of health care to deliver patient
records to marketers without patient consent. Imagine getting, for
example, a letter that says in so many words, "We know you have
hemorrhoids and are depressed. We urge you to buy Drug X for your
hemorrhoids and Drug Y for your depression." It's legal under the
Guess which one of these policies is now under ferocious assault?
Yup, the one requiring HMOs to get patient consent before reading
patient medical records. Thanks to lobbying by the HMO and hospital
industries, Tommy Thompson, the new Secretary of the Department
of Health and Human Services (DHHS), announced in February that
he will consider rewriting the Clinton privacy rules. House Majority
Leader Dick Armey of Texas also sent a letter on March 5 to Secretary
Thompson, urging him to block implementation of the Clinton rules.
Clinton's privacy regs were a surprise because his administration
had endorsed the opposite policies in the draft regs announced back
in October 1999 (see "Invasion
of Privacy," August 21, 2000). The draft regs let HMOs rifle
through patient files without consent, but denied that privilege
to businesses that sought patient files merely for marketing purposes.
Clinton changed the first rule after pressure from the AMA,
the American Psychiatric Association
and more than 52,000 letters from doctors and patients. But while
Clinton hailed his new position on the issue of HMOs reading medical
records, he concealed his 180 on the question of marketing.
After declaring that the new regs "make medical records easier
to see for those who should see them, and much harder to see for
those who shouldn't," Clinton added: "There's something else that's
really bothered me too, for years, and that is that private companies
should not be able to get hold of the most sensitive medical information
for marketing purposes. ... Recently, expectant mothers who haven't
even told their friends the good news are finding sales letters
for baby products in their mailboxes. That's also wrong. And under
these new rules, it will also be illegal."
But under those new rules, it's not illegal. The only option patients
have under the new regulations is to tell marketers, after the marketer
has solicited the patient, that they do not want their name on the
marketer's solicitation list. Of course, once the marketer has solicited
the patient, the damage to privacy has already been done--the patient's
medical information has already been seen by unwelcome third parties.
Meanwhile, the spinmeisters for the HMO industry are claiming that
the patient-consent requirement will raise premiums and damage the
alleged ability of HMOs to improve medical care. "The regs will
result in more paperwork and higher co-payments and premiums," declared
Mary Grealy, president of the Healthcare Leadership Council, a trade
group representing health insurance companies, hospital chains and
drug companies. At a press conference on December 20, Karen Ignagni,
president and CEO of the American Association of Health Plans (AAHP),
the HMO industry's trade group, claimed the consent requirement
would "unintentionally jeopardize care" by making it harder for
HMOs to do those wonderful disease-prevention activities they claim
to do so well, such as reminding women to have a mammogram.
Ignagni did not explain why it should be so difficult for doctors
to get their patients to give them permission to send their names
to an HMO for the limited and benign purpose of sending them reminder
letters when it's time to have a mammogram or an immunization. Most
patients would probably agree to such a limited invasion of their
privacy. The real reason the HMO industry is upset with the patient-consent
requirement is that HMOs want to continue their habit of commandeering
patient files to curtail the use of medical services, and the industry
knows that the patient-consent requirement will make this habit
difficult to sustain.
The new administration's decision to reconsider the Clinton privacy
regs would be encouraging if this administration had shown some
genuine interest in patient privacy and a lot less interest in groveling
before the HMOs. But Thompson is reviewing the regs because the
HMO industry asked him to. In a speech on February 26 to representatives
of the AAHP, Thompson regurgitated Ignagni's arguments. "Our greatest
concern is that these regulations not unwittingly block needed care,"
he said solemnly.
If Thompson, or ultimately Congress, revises the regs to eliminate
the requirement that HMOs get patient consent, but maintains the
right of marketers to see records without consent, we will then
have the worst of all possible worlds--no patient control over who
sees our records and the formal endorsement of this awful status
quo by the federal government.
Kip Sullivan sits on the steering committee of the Health
Care Campaign of Minnesota.