Friday, January 07, 2000

Editor,Great Neck Record

Dear Editor,

My letter to the Assistant Secretary of the Department of Health and Human Services (HHS) is in response to regulations that HHS has proposed to protect patient privacy specifically in regard to electronic medical records, also known as EMRs. While most physicians do not currently use an EMR, most experts expect that to change radically in the coming decade.

When the Health Insurance Portability and Accountability Act of 1996 (HIPAA)�the Kennedy- Kassebaum Bill�was enacted, it included a provision mandating that Congress follow up with a law enact- ing such privacy protections. Failing that, HIPAA mandated that the Secretary of HHS, then and now Ms. Donna Shalala, put forth such privacy regulations. Since Congress could not agree on privacy legislation, Secretary Shalala and HHS have issued their own set of proposed privacy regulations�see http://aspe.hhs.gov/admnsimp for the full text of the pro- posal.

A careful reading of the so-called "Standards for Privacy of Individually Identifiable Health Information" proves the old maxim that "you can't judge a book by its cover." A detailed analysis of the rule is available by the Association of American Physicians and Surgeons, AAPS, on their web site at www.aapsonline.orgAAPS has concluded that the proposed rule would be more appropriately entitled "The End of Privacy" rule.

This rule will undermine the privacy that patients cherish in numerous ways. Briefly, it does the following:

• Expands the variety and quantity of information from your medical record to be released without your knowledge or consent, e.g. information that would contribute to "other social values" and other "national priorities" such as the smooth operation of the health care system.
• Automatic authorization for release of patient data for governmental "policy evalua- tions"�i.e., patients could become non-consenting research subjects in broad public policy experiments.
• Reverses the "default" option of NON-disclosure of information in most situations by allowing non-authorized release of information for "health care operations."
• Narrowly limits the specific instances that require explicit authorization of "protected" information.
• Limits your Fourth Amendment right against unreasonable search and seizure by emphasizing that this right is not absolute�in essence an administrative agency will determine the limits of an unalienable right.
• Exempts "clearinghouses" from privacy rules�insurance clearinghouses are the very entities that amass huge amounts of private patient data.

My letter to the Assistant Secretary is part of an effort spearheaded by AAPS to insure that this proposed federal regulation does not lead to the end of the trust that is so crucial to the doctor-physician relationship. I hope that after carefully reviewing the proposed regulation and the analysis mentioned above, your read- ers will also feel compelled to submit their own comments on this misguided proposal before it is adopted as proposed. The comment period closes February 17, 2000. Sample patient letters to HHS can also be found on the AAPS web site.

Thank you for your attention to this matter.

Sincerely,

Gary S. Mirkin, MD