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APA President Herbert Sacks, M.D., blasted a Clinton Administration proposal on medical record confidentiality after the proposal’s release September 11 by Health and Human Services Secretary Donna Shalala in testimony to the Senate Labor and Human Resources Committee in Washington, D.C.
The Administration proposal is "a giant leap backward," said Sacks. "Unless the Congress adopts a stronger confidentiality law, electronic peeping toms in managed care companies, federal agencies, and law enforcement agencies will have extensive access to some of our most intimate personal and family secrets. The Administration proposal, in effect, ignores the time-tested principle of requiring the informed consent of patients before personal medical information is disclosed and requiring law enforcement agencies to seek court permission to review personal medical information."
In August and September, APA officials including Sacks, Medical Director Melvin Sabshin, M.D., APA Secretary Paul Appelbaum, M.D., and Trustee-at-Large Marcia Goin, M.D., met with Shalala, Clinton health care adviser Chris Jennings, and others to press APA’s concerns about medical record confidentiality. In particular, APA officials urged the Administration not to propose changes that would block states from adopting stronger privacy protections than those provided under federal law. This provision was included in the Administra-tion’s September 11 proposal.
Other than the provision protecting the right of states to legislate stronger protections, Sacks had little good to say about the proposal.
The HHS proposal marks "a dramatic retreat from America’s privacy principles by placing the federal ‘Good Housekeeping seal of approval’ on practices that will undermine the trust between patient and physician, and erode the quality of health care," Sacks asserted. Psychiatrists should be especially alarmed by the proposal’s legitimizing the growing practice by managed care companies of compiling detailed records based on reviews of notes made by psychiatrists and other physicians, said Sacks. There is nothing in the Administration proposal that would impede this practice, he contended. Such information could be used by insurance companies and others to deny insurance. Self-insured employers could use the information as a factor in job promotions, he added.
The Administration proposal would also "allow police ‘paparazzi,’ without permision and without restraint, to prowl through the records of innocent citizens, search for that one snapshot in a thousand that indicates possible wrongdoing," said Sacks. This practice is akin to "giving the police the right of hot pursuit through a crowded schoolyard," he added.
Sacks called on legislators to reject the Administration proposal and urged them to enact "meaningful medical records privacy legislation."
One APA ally on Capitol Hill is Democratic Senator Patrick Leahy (D-Vt.), who criticized the proposal for failing to specify that patients have the right to know how their medical information is being used. Leahy was also critical of the proposal’s failure to put constraints on what he termed "fishing expeditions" through sensitive medical records by police officials.
The Administration’s recommendations would permit "any police officer to walk into a doctor’s office" and demand to see patients’ medical records, said Leahy. He has drafted an alternative proposal that would put stronger constraints on access to medical records. That proposal may be introduced as legislation sometime this month, according to William Bruno, an associate director of government relations for APA.