June 7, 2001
The Honorable J. Dennis Hastert
Speaker of the House of Representatives
Washington, DC 20515
The Honorable Sam Johnson
Subcommittee on Employer-Employee Relations
2181 Rayburn House Office Building
Washington, DC 20515
Dear Speaker Hastert and Chairman Johnson:
I respectfully request that you move H.J.Res. 38, my Medical Privacy Protection Resolution, to the House floor before June 15, 2001. As you may know, H.J.Res. 38 uses the procedures established in the Congressional Review Act (CRA) to repeal the Department of Health and Human Services (HHS)' so-called "medical privacy" resolution, however, Congress has only until June 15th to use the CRA to repeal the medical privacy rule. If we do not act by June 15 then any legislation passed by the House dealing with this subject will have to go through the Senate Health, Education, Pensions, and Labor (HELP) Committee, which is now dominated by supporters of the HHS "privacy" rule. Thus, if Congress does not act by the 15th, it will become more difficult to repeal this misnamed "privacy" rule.
According to a Gallop survey commissioned by the Institute for Health Freedom, 92% of Americans oppose allowing government agencies to have access to medical records without patient consent. The American people are more opposed to government agencies having
unfettered access to medical records than they are to any private party, with the exception of financial institutions, having access to their medical history. Yet HHS's rule increases the power of government agencies to seize medical records without consent!
For example, these regulations allow law enforcement and other government officials access to a citizen's private medical record without having to obtain a search warrant. Allowing government officials to access a private person's medical records without a warrant is a violation of the fourth amendment to the United States Constitution, which protects American citizens from warrantless searches by government officials. The requirement that law enforcement officials obtain a warrant from a judge before searching private documents is one of the fundamental protections against abuse of the government's power to seize an individual's private documents. While the fourth amendment has been interpreted to allow warrantless searches in emergency situations, it is hard to conceive of a situation where law enforcement officials would be unable to obtain a warrant before electronic medical records would be destroyed.
In addition to law enforcement, these so-called "privacy protection" regulations create a privileged class of people with a federally-guaranteed right to see an individual's medical records without the individual's consent. For example, medical researchers may access a person's private medical records even if an individual does not want their private records used for medical research. Although individuals will be told that their identity will be protected, the fact is that no system is fail-safe. I am aware of at least one incident where a man had his medical records used without his consent and the records inadvertently revealed his identity. As a result, many people in his community discovered details of his medical history that he wished to keep private!
As an OB-GYN with more than 30 years experience in private practice, I am very concerned by the threat to medical practice posed by these regulations. The confidential physician-patient relationship is the basis of good health care. Oftentimes, effective treatment depends on the patient's ability to place absolute trust in his or her doctor. The legal system has acknowledged the importance of maintaining physician-patient confidentiality by granting physicians a privilege not to divulge confidential patient information. What will happen to that trust between patients and physicians when patients know that any and all information given their doctor may be placed in a government database or seen by medical researchers or handed over to government agents without so much as a simple warrant?
These regulations violate the fundamental principles of a free society by placing the perceived "societal" need to advance medical research over the individual's right to privacy. They also violate the fourth and fifth amendments by allowing law enforcement officials and government favored special interests to seize medical records without an individual's consent or a warrant and could facilitate the creation of a federal database containing the health care data of every American citizen. These developments could undermine the doctor-patient relationship and thus worsen the health care of millions of Americans.
If Congress fails to repeal this rule, we will have failed to protect the majority of Americans who oppose giving government sweeping powers to violate medical privacy. Therefore, I once again respectfully request that you place H.J.Res. 38, the Medical Privacy Protection Resolution, on the House calendar before June 15. Thank you for your consideration of my views.
cc: Hon. Richard Armey
Hon. Tom Delay