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Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto



Dear AAPS Members and Friends:

You may have read news stories or received other alerts about "changes" in the federal government's medical privacy rules. Some of the headlines may have caused some confusion so we thought we'd set the record straight.

These are NOT new rules or modifications to HIPAA. Rather, they are the "official" version of the rules that the Administration announced in March 2002, now published in the Federal Register as of 8/14/02 www.access.gpo.gov/su_docs/fedreg/frcont02.html.

As we stated in March, none of these actions changes the position of AAPS. We still believe that patients and physicians are the losers in these rules.

In legal news, AAPS has filed a Notice of Appeal in our litigation to overturn these regulations. To refresh your memory, the judge ruled that the case was not "ripe" yet because he accepted the Department of Justice's argument that no harm has been done yet since the rules do not go into effect until March 2003. The briefs are due in September, and will be posted on the AAPS website at www.aapsonline.org.

Below are two new items of interest on the regulations:

1. The AAPS response to the USA Today story on the privacy regulations, and 2. An excellent analysis of the impact of the regulations by Twila Brase of Citizen's Council for Health Care.

Please feel free to "borrow" the letter if you want to write a response to any news reports that you read or hear.


August 12, 2002

To: Letters Editor
USA Today

Re: "Health privacy rules changes may be set," News, 8/9/02

Our flawed national medical privacy policy hasn't yet taken effect, but the resulting chill has already begun to nip at the heels of honest patient-physician communication.

We raised the same concern as did your article in our lawsuit last year to overturn the rules. But the Department of Justice waved it off as a minor concern, and the judge agreed. We were told to file another lawsuit if and when any harm had been done.

But according to our national poll of doctors, about 87% report that patients have asked that information be kept out of the record. Most have been willing to do so.

Patients apparently understand something about these new rules that the regulators don't - they want to control the potentially harmful or embarrassing information in medical records. When physicians are forced to reveal their patients' confidences to government, marketers and insurance companies, patients are left with no choice but to lie or withhold information. At this rate, distorted, incomplete and potentially dangerous medical records will become the norm.

While masquerading as patient protection, the rules actually eliminate any last shred of patient confidentiality and put patients' lives at risk. How much damage has to be endured before the rules are dumped?

Kathryn Serkes
Public Affairs Counsel
Association of American Physicians & Surgeons
434 N. 87th Street
Seattle, WA 98103
(206) 769.5417 cell phone


For Immediate Release
Monday, August 9, 2002

Citizens' Council on Health Care
1954 University Ave. W., Suite 8
St. Paul, MN 55104
CONTACT:Twila Brase, R.N., President
PHONE: 651-646-8935


The Bush Administration's modification of the final federal medical privacy did not focus on the privacy needs of patients. It focused on the health care industry's desire for date, says one health care policy organization.

"The modified rule is chock full of privacy loopholes. While the Clinton rule allowed disclosure to government agencies without consent, the Bush Administration has tacked on unconsented disclosure for almost everyone else," says Twila Brase, president of Minnesota-based Citizens' Council on Health Care (CCHC).

The 474-pages of modifications to the original final privacy rule was released today by the Department of Health and Human Services (HHS) and is available online. The Bush Administration modified the final Clinton Adminstration rule slightly in 2001, shortly after President George W. Bush took office, and now has made significant modifications. An official copy of the modifications will be in the Federal Register on Wednesday, August 14, 2002. The HHS received over 11,400 public comments regarding the proposed modifications. The final rule with modifications will take effective April 14, 2003.

"Protecting privacy is easy if you care about the patient. Just require patient consent. With the complete elimination of patient consent requirements, the federal medical privacy rule, as finalized by the Clinton Administration and modified by the Bush Administration, does not care about patients. It cares about health care industry, research organizations, government databases and law enforcement," says Brase.

Brase says regulators writing the modifications used variations of the word 'balance' 17 times to describe why patient privacy did not take first place in their considerations. Throughout today's document, the HHS wrote that patient privacy interests were balanced against:

- "public health and safety"
- "public health"
- "permitting researchers to access data...for studies"
- "the need to allow deidentified databases to be useful"
- "important research"
- "burden on entities to track all disclosures, regardless of purpose"
- "financial and administrative burden on entities"
- "alleviating burden on covered entities"
- "legitimate need that plan sponsors have"
- "need for core activities [payment, treatment and health care operations] to continue"
- "quality health care"
- "administrative burden"
- "covered entities need for information for quality-related health care operations"
- "covered entity's need for information for reimbursement and quality purposes"
- "covered entities need for information"
- "entities needs for information"
- "other public goods"

"The most important thing to understand about this rule is that according to the government, patients do not have a right to keep their personal lives private." Brase emphasizes. "They have no right to control who sees their personal information. Throughout this document, the department makes it clear that regulators have 'balanced' privacy interests against other interests, and the other interests won."


CCHC is an independent non-profit free-market health care policy organization located in St. Paul, Minnesota