By Jon Dougherty
� 2002 WorldNetDaily.com

As time for submitting comments to the Department of Health and Human Services regarding a "final" medical privacy rule nears an end, activists are reminding Americans that their health privacy is as at risk today as it was during the Clinton administration.

The department, which will accept comments that are postmarked by tomorrow, argues that changes to the rule will keep medical records safe "while improving access to care," but health privacy advocates say the changes suggested by the Bush administration would actually reduce a patient's ability to decide who can view medical records by removing consent forms for treatment, payment and health-care operations.

Worse, they say the privacy elements of federal health-care law were initially devised by then-first lady Hillary Rodham Clinton during secret negotiations and were ultimately rejected by lawmakers in 1993.

The privacy rule comes from the Health Insurance Portability and Accountability Act, or HIPAA, of 1996. When it passed, Congress was supposed to develop the privacy rules. Because Congress didn't, the job fell to HHS.

"Some language from Hillary's plan is almost identical to HIPAA," says Robin Kaigh, a New York lawyer who has tracked medical privacy since the bill's passage.

Sue Blevins, head of the Institute for Health Freedom, agreed, saying the "genesis" of HIPAA's centralized care system began as part of Clinton's health-care proposals.

Clinton's plan initially proposed prohibiting doctors from getting a patient's consent for health-care treatment, payment and the broader "health-care operations."

But word of the rule spread, and HHS received over 52,000 comments, most criticizing the rule and demanding that consent not be abandoned in resulting regulations.

In the end, HHS during the Clinton administration implemented a weak consent rule, which basically said doctors have to get patient permission before sharing information for health-care payment, treatment and operations but had a right to refuse care.

"In other words, a patient had to agree to release information, or they could be refused treatment," Blevins said.

The Bush administration is again seeking to eliminate patient consent, according to analysts, which is essentially the same thing as the Clinton HHS attempted to do.

One difference this time, Blevins said, is that the administration is treating "notification � the same as consent."

"That's like an exterminator notifying you he's coming in your home before you give permission," she said. "Everyone agrees the exterminator should be there, but on your terms, not his. It's the difference between giving a school physician permission to do a vaginal exam on your daughter versus a requirement that the school physician notify you that the exam was done."

Bill Pierce, a spokesman for HHS, told WorldNetDaily the department had yet to count the number of responses it has received regarding the privacy rule changes. But, he said, "It's going to be in the thousands, no doubt."

He added that it would probably be mid-May before the department had them sorted out.

In a March 21 statement announcing the proposed privacy changes, HHS Secretary Tommy Thompson outlined those changes. He said his proposals would "strengthen notice provisions and remove consent requirements hindering access to care."

"As written, the privacy rule's general requirement that patients give prior consent on privacy practices before receiving treatment created serious unintended consequences that interfere with patients' access to health care," HHS said.

But Kaigh said it's been "an age-old common practice of doctors to require consent forms before medical information about patients be released."

"It should be up to the patient, not the government, to decide who sees medical records," she added.

The department said, however, "to fix these problems, the proposal would promote access to care by removing the consent requirements for treatment, payment and health-care operations that could interfere with efficient delivery of health care, while strengthening requirements for providers to notify patients about their privacy rights and practices."

"Patients would be asked to acknowledge the privacy notice, but doctors and other providers could treat them if they did not," the department, in its statement, said.

Other analysts disagree.

"Under the new rule, doctors and hospitals will be required to open up their records to HHS and other government agents without so much as a court order," said an analysis by the National Consumer Coalition's Privacy Group. "The rules also override private contractual arrangements between patient and doctor with a bureaucratic mandate."

Blevins added there are other similarities between the final HIPAA law and Hillary Clinton's task force recommendations � specifically, the "administrative simplification" section, which basically establishes uniform guidelines for an electronic health information system "by establishing standards, and requiring the electronic transmission of certain health information," according to HIPAA.

In 1997, then-HHS Secretary Donna Shalala acknowledged that "HIPAA's 'Administrative Simplification' section will simplify the ability to transfer patient records and medical data electronically," Blevins said.

"With greater ability to transfer information there is greater opportunity for hacking and other invasions of privacy," Kaigh said.

"We are aware that our recommendations come at a time of continuing, rapid change in the health-care system and its information components," said Shalala, in published comments. "The standards for administrative simplification that the department will soon publish, under the Health Insurance Portability and Accountability Act of 1996, will in themselves lead to new developments in the transfer and use of information."

Most recently, Shalala � in a New York Times op-ed piece � criticized the Bush administration for seeking to eliminate the consent rule.

"When we find AAPS and Donna Shalala saying the same things about the regulations, something's going on," said Kathryn Serkes, a spokeswoman for the Association of American Physicians and Surgeons. But, she added, "the predominant theme � that you have no choice � is a byproduct of HillaryCare."

"There is so much wrong in the infrastructure of the regulations that tweaking them here and there isn't going to fix them," she said, noting that her organization, at a hearing in January, asked lawmakers to simply make one change � eliminate the marketing language.

"One of our areas of concern is the marketing issues," she said. "The bureaucrats that write regulations don't seem to get it that there's a difference between clinical use of information and the rest of it � which includes marketing."

Serkes noted that in a clinical setting, "physicians need to be able to share information to get patients taken care of."

"Most of the concerns people have with the regulations have to do with the other aspects of sharing that information," such as commercial marketing, she said.

But AAPS doesn't like the rule in its entirety. Serkes said the group has a lawsuit pending against HHS to force the agency to overturn its privacy regulations as unconstitutional: "We'll probably just let our lawsuit do the talking for us."

Rep. Ron Paul, R-Texas, himself a physician and a noted opponent of relaxing medical privacy rules, has also joined the AAPS lawsuit.

Overall, some experts believe the HIPAA law, in its voluminous entirety, is simply too complex, time-consuming and expensive to comply with.

"The HIPAA statute, and the regulations and the guidance that have started coming out, are so voluminous and so complex it is going to make Medicare look like child's play," said Donna Boswell, a Washington, D.C.-based health-care attorney, at the Association of American Physicians and Surgeons spring meeting in June 2001 in Chicago. "Get ready for them."

Kaigh added: "How can there be medical privacy when patient consent is removed?"

Related stories:

Medical privacy still under assault

Congressman joins medical privacy suit

Privacy rules turn doctors into criminals?

Paul to stall medical privacy rules

Online health privacy a 'myth'?

Medical ID number quashed again

Health providers sounding privacy alarm

HHS pulls plug on medical privacy period

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Jon E. Dougherty is a staff reporter and columnist for WorldNetDaily, and author of the special report, "Election 2000: How the Military Vote Was Suppressed."