Copyright 1999 Federal Document Clearing House, Inc.
Federal Document Clearing House Congressional Testimony
July 21, 1999
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 1796 words
HEADLINE:
TESTIMONY July 21, 1999 RICHARD HARDING, M.D. HOUSE BANKING AND
FINANCIAL SERVICES FINANCIAL INSTITUTIONS AND CONSUMER CREDIT UNIONS FINANCIAL
PRIVACY
BODY:
TESTIMONY OF RICHARD HARDING, M.D. On
behalf of THE AMERICAN PSYCHIATRIC ASSOCIATION on MEDICAL RECORDS PRIVACY before
the SUBCOMMITTEE ON FINANCIAL INSTITUTIONS AND CONSUMER CREDIT U.S. HOUSE OF
REPRESENTATIVES July 21, 1999 Madame Chair, I am Richard Harding, M.D.,
Vice-President of the American Psychiatric Association (APA), a medical
specialty society representing more than 40,000 psychiatric physicians
nationwide. I am Vice-Chairman, Clinical Affairs and Professor of
Neuropsychiatry and Pediatrics at the University of South Carolina Medical
School. I also serve on the National Committee on Vital and Health Statistics
which was charged by the Congress to make recommendations to the Secretary of
Health and Human Services on protecting the privacy of medical records. The
views I am presenting before the Sub-committee today are my views and the views
of the American Psychiatric Association. First let me thank the Chair of the
Subcommittee, Mrs. Roukema and Ranking Member Vento for holding these valuable
hearings. And let me add my particular thanks to Representative Roukema for your
outstanding and continuing support not only for non- discriminatory insurance
coverage of mental illness, but your overall leadership on mental health and
indeed health issues in general. It is unfortunate that recent debates on
medical records privacy have become divisive. Privacy is a natural issue for
conservatives concerned about state rights, individual liberty, and freedom from
intrusive government policies to work with liberals dedicated to personal
privacy, and Fourth Amendment Constitutional due process protections. In fact,
earlier this year the American Psychiatric Association and others worked closely
with Senators Roth and Leahy and Representatives Stark, Markey, Paul and
Whitfield to modify a HCFA regulation that would have seriously undermined
patient privacy. I hope individuals on both ends of the political spectrum will
be able to work together on this issue. Turning to the medical records
provisions of H.R. 10, APA is extremely concerned that these provisions will
undermine patient privacy and the quality of health care. Because the provisions
would overturn the principle of patient consent before disclosure of records and
may overturn certain state privacy laws, H.R. 10 represents a significant step
backwards for patient privacy. Moreover, since doctor-patient confidentiality is
an essential element of effective medical treatment, these provisions will also
have significant ramifications for the quality of health, and particularly
mental health, care. Without a very high level of patient privacy, many patients
will be deterred from seeking needed health care or from making a full and frank
disclosure of critical information needed for their treatment. For these and
other reasons over 40 physician, provider, and patient groups, including the
American Medical Association, the American Lung Association, the American
Academy of Family Physicians and two major unions oppose these provisions. As
great as our concerns are about H.R. 10, the sponsor of these provisions has
stated that his intention is not to preempt state privacy laws. He has also
expressed his general support for the principle of patient consent before the
disclosure of medical records. These are two critically important principles
that we strongly support. When combined with other changes I outline in my
written testimony, these principles offer hope of a positive resolution of this
issue. However, we do urge members of the Subcommittee to err on the side of
caution and indeed of protecting privacy when considering these provisions. Just
as "the first rule of medicine is to do no harm" we hope the Subcommittee will
adopt the same approach on medical records privacy issues. If the Congress
permits extensive use and disclosures of patients medical records without the
informed voluntary consent of patients in H.R. 10, it will be enormously
difficult if not impossible to undo the damage later. At least if we do no harm,
states efforts to address this issue can continue and positive and comprehensive
medical records legislation can be enacted into law. Finally, I know that most
members of this Subcommittee are probably more familiar with financial privacy
issues than with medical records privacy issues. It is critically important to
recognize the difference between medical records privacy and financial privacy.
If financial information is wrongfully disclosed it can be a nuisance, an
embarrassment, and in some cases may even cause financial loss. But one can seek
legal redress to recover any financial losses. But the damages from breaches of
medical records privacy are of a different nature.
Medical records information can include
information on heart disease, terminal illness, domestic
violence, and other women s health issues, psychiatric treatment, alcoholism and
drug abuse, sexually transmitted diseases and even adultery. The U.S. Supreme
Court noted in its 1996 Jaffee v. Redmond decision that disclosures of medical
records information may cause personal "disgrace." These disclosures can
jeopardize our careers, our friendships, and even our marriages. And if such
disclosures occur, there are truly few meaningful remedies. Seeking redress will
simply lead to further dissemination of the highly private information that the
patient wished to keep secret. Nor can a financial settlement do much to
compensate the individual for these highly personal losses. For all these
reasons very strong medical privacy protections are needed. Our particular
concerns concerning Section 351 are as follows: The medical records provisions
of H.R. 10 would allow the use and disclosure of medical records information
without the consent of the patient in extraordinarily broad circumstances. To
give just two examples, law enforcement entities would enjoy virtually
unfettered access to medical records and insurance companies could review
individual medical records in performing marketing studies. The list of entities
that could obtain medical records is also extensive. Why should life insurers,
auto insurers, and even insurers providing travel cancellation insurance be able
to routinely access patients entire medical records without patient consent or
even knowledge? To complicate matters further, Section 351 establishes no
limitations on subsequent disclosures of medical records to non- affiliated
entities. Once a disclosure has occurred, there is no limitation on the types of
disclosures that the recipient of this information may make. Thus, if an insurer
contracts out a certain authorized service to a bill collection agency or an
administrative support company, nothing in the legislation would prevent these
organizations from disclosing the information for a host of inappropriate
purposes far beyond any legitimate health use. These secondary recipients could
even disclose the medical records information to malpractice attorneys seeking
potential clients, tabloids seeking publicity, etc. Section 351 lacks the basic
protections included in all the major confidentiality bills before the Congress.
The legislation lacks specific requirements for physical, technical, and
administrative safeguards to prevent unintended disclosures of medical records.
Nor does the legislation encourage the use of deidentified medical records or
insure that patients will receive notice of the confidentiality, use, and
disclosure practices of the insurance companies. These provisions are even more
troublesome because they could preempt state privacy laws. Let me also explain
more fully the two key principles that should serve as the foundation of any
privacy legislation. Preemption. I believe the most important medical records
privacy provision is to insure that stronger state medical records privacy laws
are preserved and that states ability to enact stronger medical records privacy
laws is protected. States have adopted valuable protections for patients,
including laws blocking insurers access to verbatim psychiatric notes. States
are also actively considering numerous additional proposals. In fact, the
National Council of State Legislatures estimates that a total of 56 medical
records confidentiality bills have passed through at least one chamber of a
state legislature. We must not block states efforts to protect citizens' medical
privacy. Consent. APA believes three principles should govern authorization and
consent for disclosure of medical records. First, patients themselves should
decide whether or not personal health information is disclosed. Consent before
use and disclosure of medical records is critically important and this
time-tested approach should be preserved and strengthened in order to remain
meaningful in the changing world of health care delivery. In general, whatever
problems may now exist with confidentiality of health information are derived
from our failure to observe this principle. No one is in a better position than
patients themselves to identify sensitive information and to determine to whom
it ought not to be revealed. Those who would alter this traditional approach
have failed to justify such a radical change. Second, identifiable personal
health information should be released only when deidentified data is inadequate
for the purpose at hand. Third, even when consent has been obtained, disclosure
should be limited to the least amount of personal health information necessary
for the purpose at hand. This is consistent with our recognition of the
importance of protecting medical privacy. These principles have implications for
some of the major policy questions regarding authorization of disclosure. For
patients to retain meaningful control over personal health information,
prospective consent for routine disclosures of identifiable information should
be largely limited to information needed for treatment and payment purposes.
Other health care operations can usually be accomplished with deidentified data.
With such a provision, a strong incentive will exist for the use and further
enhancement of technology to perform a wide array of administrative functions.
Conclusion As physicians, we take an oath first stated by Hippocrates that,
"Whatsoever things I see or hear concerning the life of men, in my attendance on
the sick. . .I will keep silence thereon, counting such things to be as sacred
secrets." In order to make sure that doctor-patient confidentiality continues to
protect patients in the new millennium, I strongly urge the Subcommittee to
address these important issues. We thank you for this opportunity to testify,
and we look forward to working with the Committee on medical records privacy
issues.
LOAD-DATE: July 26, 1999
