Medical Privacy Threatened Deadline for Halting Dangerous Regulations Quickly
Approaching
An unconstitutional and dangerous rulemaking procedure by the U.S.
Department of Health and Human Services is underway and greatly threatens the
health care privacy and freedom of Americans. The deadline for concerned
citizens to submit comments to HHS is February 17.
On November 3rd, 1999, the Department of Health and Human Services (HHS)
published proposed medical privacy regulations in the Federal Register.
Protecting medical privacy is a noble goal; however, the federal government is
not constitutionally authorized to mandate a uniform standard of privacy
protections for every citizen. Rather, individuals and those with whom they
entrust their health care information should determine the question of who
should have access to a person's medical records. Real threats to privacy come
primarily from governments that have historically compelled individuals to
provide information, often in exchange for some government benefit.
The HHS regulation would severely reduce individuals' control over their
medical records. The regulation, when finalized, will deny, as a matter of
federal law, individuals' ability to contract with providers or payors to
establish limitations on who should have access to their medical records.
Instead, every American will be forced to accept the privacy standard decided
upon by Washington-based bureaucrats and politicians, and it is not a good
one.
The regulations also give the federal government power to punish those who
violate these standards. Thus, in a remarkable example of government
paternalism, individuals are forced to rely on the good graces of government
bureaucrats for protection of their medical privacy. These so-called "privacy
protection" regulations not only strip individuals of any ability to determine
for themselves how best to protect their medical privacy, they also 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 people’s private medical records even if
individuals do not want this.
Forcing individuals and providers to reveal medical records without their
consent also runs afoul of the Fifth Amendment’s prohibition on the taking of
private property for public use without just compensation. After all, people do
have a legitimate property interest in their private records; therefore,
restrictions on individuals' ability to control the dissemination of their
private information represent a massive taking. The takings clause is designed
to prevent this type of sacrifice of individual property rights for the "greater
good."
Allowing law enforcement officials to access a private person’s medical
records without a warrant is a violation of the Fourth Amendment to the United
States Constitution. 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 "papers."
Finally, I object to the fact that these proposed regulations "permit"
health care providers (already beholden to government by funding) to give
medical records to the government for inclusion in a federal health care data
system. Such a system would contain all citizens’ personal health care
information. History shows that when the government collects this type of
personal information, the inevitable result is the abuse of citizens’ privacy
and liberty by unscrupulous government officials. The only fail-safe privacy
protection is for the government not to collect and store this type of personal
information.
Before implementing these rules, HHS must consider what will happen to the
trust between patients and physicians when patients know that any and all
information given their doctor may be placed in a government database, seen by
medical researchers, or handed over to government agents without a warrant. For
more information on how to submit comments to the Department of Health and Human
Services, feel free to contact my congressional staff by email at rep.paul@mail.house.gov. Please use
the words "HHS Regs" in the subject line, and make sure to include your email
address in your message. You may also contact my office by phone at
202-225-2831.
