June 14, 2001
Jane Orient, MD
American Association of Physicians and Surgeons, Inc.
1601 N. Tucson Blvd. Suite 9
Tucson, AZ 85716-3450
Dear Dr. Orient:
The American Association of Physicians and Surgeons (AAPS) is at it again. Rather than commenting responsibly on congressionally required patient privacy regulations, AAPS is disseminating inflammatory and inaccurate propaganda with the intent to incite anger and sensationalize the issues. Your June 8th email to “First Alert Team” entitled: “Action needed to Repeal HHS ‘Privacy’ Rules” does just that. Unfortunately, AAPS would rather ignore their patient’s privacy concerns and fire broad side at the American Medical Association (AMA) and its members for speaking out on the importance of medical record privacy.
The AMA wholeheartedly believes that physicians and other health care providers are the guardians that stand between patient’s private medical records and those that wish to obtain them for a variety of purposes other than treatment and payment. Physicians have an ethical duty to keep confidential any communications made during the physician-patient relationship. This duty lays the foundation for patient trust. Preservation of patient trust and autonomy is imperative to continue high quality patient care in an increasingly technological health care environment. Does AAPS disagree?
A careful review of the AMA’s comments on both the proposed and final regulations reveals numerous blatantly inaccurate statements by AAPS and demonstrates that the positions taken by the AMA are based firmly and logically in member developed policy.
Let’s get the facts straight. Is the AMA happy with the consent provisions in final privacy rule? No. Did the AMA “tell” President Bush to implement the final rule? Absolutely not.
The AMA submitted thirty-one pages of detailed comments on the final privacy rule, four of which explain concerns the AMA has with the consent requirement. Mainly, that HHS got the consent requirement backwards by applying it to physicians and other health care professionals that already have ethical and legal obligations to protect patient privacy, but not to health plans and other entities covered under the privacy rule that do not have such obligations. The AMA stressed that the consent requirement must be workable and flexible and that certain exceptions are necessary for it to work without impeding patient care. The letter specifically requests HHS to reexamine application of the consent requirement and many other requirements in the final rule that unfairly place a disproportionate burden on physicians. A good- faith standard for determining physician compliance was suggested in addition to an educational, not punitive, approach to enforcement.
Most notably, the AMA pointed out to HHS several ironies that result from the potential imposition of civil and criminal sanctions under HIPAA for violations of the privacy rule. Patient fears regarding unauthorized release or use of medical information are not directed at physicians. Moreover, state medical licensing boards already have the authority to investigate complaints against physicians for breaches of patient confidentiality. The AMA’s membership does not understand why a new federal regulatory scheme needs to be superimposed upon an existing set of obligations to accomplish the same goal. It is redundant and it treats physicians the same as entities completely removed from the context of an ethical or fiduciary relationship with patients.
The AMA takes particular exception to a purely deceitful statement by AAPS that the AMA “told” President Bush to implement the privacy regulations even though Secretary Thompson was prepared to put them on hold. To the contrary, the AMA sent the Administration two separate letters requesting that the final privacy rule be delayed so that HHS could reexamine and improve the rule prior to its effective date. Despite the fact that President Bush ordered the rule implemented without changes, we are encouraged that the administration has indicated it is considering potential changes at a later date. In our meetings with HHS, the Secretary’s staff acknowledged that further modifications to the consent requirement and other issues can, and will, be made.
We remain committed to working with the Administration and the Congress to adequately protect patient medical record privacy without substantially and unacceptably increasing the administrative burdens for physicians that may prove to be detrimental to patient care. We believe and have clearly and forcefully said both in our comments to the Administration and in our meetings with them that the final privacy rule, as applied to physicians, should be reexamined. HHS should exempt physicians from some of the rules provisions that are redundant for physicians and it should apply other provisions of the rule to physicians in a less burdensome manner.
Is the AAPS prepared to stand up responsibly for their patients and their members in advocating for meaningful changes to the privacy rule or will AAPS resort to your usual “just say no” position? Has AAPS met with HHS to provide recommendations to improve the privacy rule? It appears that AAPS would rather send the message to the patient community that their medical privacy concerns are not important. On behalf of the AMA, our patients deserve better!
The patient community needs responsible public policy on privacy. Isn’t it about time you offered constructive suggestions rather than railing against those who do?
E. Ratcliffe Anderson, Jr, MD
Executive Vice President, CEO
Link to AAPS reply to this letter