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[Page: S3642] GPO's PDF---
PATIENTS' TELEPHONE PRIVACY ACT
Mrs. FEINSTEIN. Mr. President, today I introduce a bill to protect the medical privacy rights of patients when they talk to their health care insurers or providers. The bill requires health care insurers and providers to obtain patients' ``express consent'' before tape-recording or monitoring conversations.
Today, the health insurance industry routinely tape-records and monitors incoming telephone calls of patients with questions about their health insurance coverage. This bill halts that common practice with two simple rules.
First, health insurance companies and health care providers must obtain the patient's ``express consent'' before tape-recording or monitoring a conversation. Second, health insurance companies and health care providers must give patients the option not to be tape-recorded or monitored.
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The bill puts control of medical privacy back where it belongs--in the hands of patients who have no choice but to share personal information with their health insurance and health care providers.
The bill protects all patients--
Whether covered by private or public health plans,
Whether covered by group, individual, or self-insured health plans,
Whether covered by Medicare or Medicaid,
Whether covered by Federal health plans, or
Whether covered by the Children's Health Insurance Plan.
Let me emphasize again who would be subject to the bill--the health insurance and health care industry--a huge industry that necessarily affects all of us. First, the bill would cover communications between patients and health insurers. Second, the bill would cover communications between patients and ``health care providers,'' which includes physicians and other health care professionals.
Federal law now requires that only one party must consent to the tape-recording or monitoring of a telephone conversation. In California, state law provides that all parties must consent before a telephone conversation may be tape-recorded. Nearly a dozen other states have adopted similar two-party consent laws. They include Delaware, Florida, Illinois, Kansas, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania, and Washington.
Even two-party consent laws, however, do not adequately address this problem. Health insurance companies tape-record or monitor patients' calls based on the patient's implied consent. Implied consent arises from the patient talking after hearing the health insurer's recording that the call may be tape-recorded or monitored. In this case, courts have held that consent is given implicitly.
Consequently, merely changing federal law to a two-party consent rule would not solve the problem. The key requirement must be that the health insurer or health care provider obtains the patient's express consent. Only this change will protect individuals when they call their health insurance provider with questions about their health care coverage. When my office contacted the top 100 health insurance providers in this country, we learned from nearly all who responded that they routinely monitor or tape-record calls received from patients.
Let me share with my colleagues some responses that we received. Kaiser Permanente operates in nineteen states and the District of Columbia, and provides care to more than nine million members. Their practice varies from state to state, depending on applicable state laws.
Kaiser Permanente may: Monitor randomly selected calls, in which case it may, or may not, notify patients in advance; or tape-record all or randomly selected calls, in which case it may, or may not, notify patients in advance.
United HealthCare wrote to me that they did not believe that tape-recording or monitoring calls even presents a privacy issue. Their rationale was that they only randomly tape-record calls and only after advising the caller that they may record the call.
Great-West responded that a patient has the option of communicating in writing if the patient does not want a telephone call to be tape-recorded. Let me say simply--that is not good enough for me. Imagine the undue burden the task of writing a letter may place on elderly or seriously ill patients.
Despite the two-party consent rule in California, New York Life Care Health Plans, Inc., asserted that no violation of California law occurs without a ``confidential communication.'' Under California state law, the definition of a ``confidential communication'' does not include communications where the parties may expect that the
may be recorded. New York Life asserted that, since they told patients that their calls could be monitored, their calls were not confidential calls.
New York Life's display of legal bootstrapping shows little, if any, regard for medical privacy rights. Their interpretation of the word ``confidential'' turns its commonly understood meaning on its head! In the minds of most people, what could be more confidential than matters about one's personal health problems? Surely little, if anything. How many of my colleagues in the Senate would say that communications about their health problems with health insurance or health care providers are not confidential?
Blue Cross Blue Shield of the National Capital Area does not give patients any notice that their calls may be monitored. Their Associate General Counsel responded that, in both Maryland and the District of Columbia, telephone communications in the normal course of business do not meet the definition of an ``interception.'' Thus, consent is not required. Although Virginia law considers a telephone to be an ``intercepting device,'' Virginia follows the one-party consent rule.
Finger Lakes Blue Cross Blue Shield randomly tape-records calls from patients and only now is setting up a front-end recording to inform patients of that practice. New York requires only one party to consent.
None of the health insurance providers who responded to my office gave me a valid reason for tape-recording or monitoring patients' calls. The standard response from health insurers was that they tape-record or monitor patients' calls for so-called ``quality control,'' an ambiguous term at best. Indeed, no one explained what that term means, how tape-recording calls benefits patients, or why tape-recording calls was necessary.
Of course, health insurance providers are not the only business entities that tape-record telephone conversations. How many of us realize that when we call for airline tickets, bank account information , mutual fund transfers, or any myriad of other daily concerns, the other party on the telephone line will be tape-recording the conversation? Yet, personal health information is far more personal in nature and, accordingly, entitled to greater protection. It stands alone as uniquely different from other commercial transactions.
This bill does not attempt to change the consent rule for other business entities. It would apply only to health insurance and health care providers. Most patients today have almost no choice about their health insurer provider or, increasingly, about their health care provider. In turn, the health insurer may give the patient no option except to submit to tape-recording the conversation. An elderly, or seriously ill patient, is simply not going to object.
Admittedly, much disclosure of medical information occurs both with patient consent and for valid medical reasons. For instance, insurance companies receive information from physicians based upon a written consent form signed by the patient at the physician's request. Yet, increasingly, threats to medical health privacy have become less visible and, in that sense, more alarming. Many individuals are left with a false sense of privacy . The potential for misuse of personal health information is real and growing.
A fundamental right to medical privacy is embedded in American society. Most Americans presume that telephone conversations about their health problems are confidential. Sadly, they are wrong.
Conversations with our health insurance and health care providers often contain deeply personal information , including prescription drugs, psychiatric care, alcohol dependency--the list goes on and on. Surely they deserve protection. Traditionally, Americans have relied upon a confidential relationship with their doctors.
Let's restore at least some measure of protection to telephone conversations about our personal health problems. This bill allows health insurance and health care providers to continue their routine practice of tape-recording or monitoring patients' calls--but only with the patient's express consent.
Mr. President, I ask unanimous consent that the text of the bill be printed in the RECORD.
There being no objection, the bill was ordered to be printed in the RECORD, as follows;
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Patients' Telephone Privacy Act of 1999''.
SEC. 2. MODIFICATION OF EXCEPTION TO PROHIBITION ON INTERCEPTION OF COMMUNICATIONS.
(a) MODIFICATION.--Section 2511(2)(d) of title 18, United States Code, is amended--
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(1) by striking ``It shall not be unlawful'' and inserting ``(i) Subject to clause (ii), it shall not be unlawful''; and
(2) by adding at the end the following:
``(ii)(I) With respect to a wire, oral, or electronic communication between a health insurance issuer or health plan and an enrollee of such health insurance issuer or health plan, or between a health care provider and a patient, it shall not be unlawful under this chapter for a health insurance issuer, health plan, or health care provider to intercept such communication only if the patient has given prior express consent to such interception.
``(II) In this paragraph--
``(A) the term `health insurance issuer' has the meaning given that term in section 733 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1191b);
``(B) the term `health plan' means a group health plan, as defined in section 733 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1191b), an individual or self-insured health plan, the medicare program under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.), the medicaid program under title XIX of such Act (42 U.S.C. 1396 et seq.), the State children's health insurance program under title XXI of such Act (42 U.S.C. 1397aa et seq.), the Civilian Health and Medical Program of the Uniformed Services under chapter 55 of title 10, and a health plan offered under chapter 89 of title 5; and
``(C) the term `health care provider' means a physician or other health care professional.''.
(b) RECORDING AND MONITORING OF COMMUNICATIONS WITH HEALTH INSURERS.--
(1) COMMUNICATION WITHOUT RECORDING OR MONITORING.--Notwithstanding any other provision of law, a health insurance issuer, health plan, or health care provider that notifies any customer of its intent to record or monitor any communication with such customer shall provide the customer the option to conduct the communication without being recorded or monitored by the health insurance issuer, health plan, or health care provider.
(2) DEFINITIONS.--In this subsection:
(A) HEALTH CARE PROVIDER.--The term ``health care provider'' means a physician or other health care professional.
(B) HEALTH INSURANCE ISSUER.--The term ``health insurance issuer'' has the meaning given that term in section 733 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1191b).
(C) HEALTH PLAN.--The term ``health plan'' means--
(i) a group health plan, as defined in section 733 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1191b);
(ii) an individual or self-insured health plan;
(iii) the medicare program under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.);
(iv) the medicaid program under title XIX of such Act (42 U.S.C. 1396 et seq.);
(v) the State children's health insurance program under title XXI of such Act (42 U.S.C. 1397aa et seq.);
(vi) the Civilian Health and Medical Program of the Uniformed Services under chapter 55 of title 10, United States Code; and
(vii) a health plan offered under chapter 89 of title 5, United States Code.
(c) EFFECTIVE DATE.--The amendments made by this Act shall take effect on the date that is 60 days after the date of enactment of this Act.
By Mrs. FEINSTEIN (for herself, and Mr. SESSIONS):
S. 783. A bill to limit access to body armor by violent felons and to facilitate the donation of Federal surplus body armor to State and local law enforcement agencies; to the Committee on the Judiciary.
JAMES GUELFF BODY ARMOR ACT OF 1999
Mrs. FEINSTEIN. Mr. President, I am pleased today to introduce the James Guelff Body Armor Act of 1999.
Currently, Federal law does not limit access to body armor for individuals with even the grimmest history of criminal violence. However, it is unquestionable that criminals with violent intentions are more dangerous when they are wearing body armor.
Many will recall the violent and horrific shootout in North Hollywood, California, just two years ago. In that incident, two suspects wearing body armor and armed to the teeth, terrorized a community. Police officers on the scene had to borrow rifles from a nearby gunshop to counteract the firepower and protective equipment of these suspects.
Another tragic incident involves San Francisco Police Officer James Guelff, for whom this act is named. On November 13, Officer Guelff responded to a distress call. Upon reaching the crime scene, he was fired upon by a heavily armed suspect who was shielded by a kevlar vest and bulletproof helmet. Officer Guelff died in the ensuing gun-fight.
Lee Guelff, James Gueff's brother, recently wrote a letter to me about the need to revise the laws relating to body armor. He wrote:
It's bad enough when officers have to face gunmen in possession of superior firepower ..... But to have to confront suspects shielded by equal or better defensive protection as well goes beyond the bounds of acceptable risk for officers and citizens alike. No officer should have to face the same set of deadly circumstances again.
I couldn't agree with Lee more. Our laws need to recognize that body armor in the possession of a criminal is an offensive weapon. We need to make sure that our police officers on the streets are adequately supplied with body armor, and that hardened-criminals are deterred from using body armor.
The James Guelff Body Armor Act of 1999 has three key provisions to achieve these goals. First, it increases the penalties criminals receive if they commit a crime wearing body armor. Specifically, a violation will lead to an increase of two levels under the Federal sentencing guidelines. Second, it makes it unlawful for violent felons to purchase, use, or possess body armor. Third, this bill enables Federal law enforcement agencies to
directly donate surplus body armor to local police.
I will address each of these three provisions.
Enhancing criminal penalties for individuals who wear body armor during the commission of a crime: Criminals who wear body armor during the commission of a crime should face enhanced penalties because they pose an enhanced threat to police and civilians alike. Assailants shielded by body armor can shoot at the police and civilians with less fear than individuals not so well protected.
In the North Hollywood shoot-out, for example, the gunmen were able to hold dozens of officers at bay because of their body armor. This provision will deter the criminal use of body armor, and thus deter the escalation of violence in our communities
Making it unlawful for violent felons to wear body armor: This bill makes it a crime for individuals with a violent criminal record to wear body armor. It is unconscionable that criminals can obtain and wear body armor without restriction when so many of our police lack comparable protection.
The bill recognizes that there may be exceptional circumstances where an individual with a brutal history legitimately needs body armor to protect himself or herself. Therefore, it provides a mechanism for violent felons to obtain specific permission from the Secretary of the Treasury to wear body armor.
This provision has already been codified into law in California. Several other states are also actively considering legislation to restrict violent felons access to body armor.
California police applied the law for the first time earlier this year. Police arrested an individual for wearing body armor who had a violent criminal record. Besides a conviction for second-degree assault in 1993, the suspect is independently facing charges for threatening to kill his ex-girlfriend. He also is facing trial for issuing death threats against security guards at a West Hollywood Nightclub.
Direct donation of body armor: The James Guelff Body Armor Act of 1999 speeds up the procedures by which Federal agencies can donate surplus body armor to local police.
It is disturbing that so many of our local police officers do not have access to bullet-proof vests. The United States Department of Justice estimates that 25% of State, local, and tribal law enforcement officers, approximately 150,000 officers, are not issued body armor.
Getting our officers more body armor will save lives. According to the Federal Bureau of Investigation, greater than 30% of the 1,182 officers
killed by guns in the line of duty since 1980 could have been saved by body armor, and the risk of dying from gunfire is 14 times higher for an officer without a bulletproof vest.
Last year, Congress made some inroads into this shortage of body armor by enacting the ``Bulletproof Vest Partnership Grant Act of 1998.'' This act established a $25 million annual fund to help local and State police purchase body armor. The James Guelff Body Armor Act of 1999 will provide a further boost to the body armor resources of local and State police departments.
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