American Civil Liberties Union

On Tuesday, Congress Blog's "Big Question" was: "Regarding healthcare reform, how can President Obama succeed where Bill Clinton failed?" Chris Calabrese, attorney for the ACLU’s Technology and Liberty Project, gave this answer:

In pushing for the overhaul of the health care system President Obama has one big step up on President Clinton: he has already succeeded in putting patient privacy first. The recent stimulus legislation contains substantive new privacy protections including the first ban on the sale of medical records, allowing patient access to audit trails, limits on marketing that uses personal health information and some right to limit the sharing of medical information. By contrast it took eight years under Clinton to adopt the weak HIPAA protections (which were subsequently watered down further under President Bush).

Public buy-in to health care reform is crucial. One of Americans’ biggest fears is that the creation of electronic medical records means more access to their medical records — by insurers, by employers and even by criminals. Proper implementation of these new statutory protections can go a long way toward alleviating those fears and putting the patient in control of his or her own care.

Equally important, many of the key features being discussed as part of any reform package — from mining patient records to find the most effective treatment options to monitoring patient prescription drug interactions — rely on effective information control. At its heart, that’s what privacy protections are — the effective control of the flow of information.

The Health Information Technology Policy Committee at HHS has already begun deliberation on what the new privacy regulations (based on the stimulus legislation) should look like. If the members craft regulations that empower consumers and allow them to control their own medical information, President Obama will likely have an IT blueprint for health care reform. If the committee cannot create a workable regime for controlling the flow of medical information, then President Obama will likely face a difficult challenge in the broader health care debate.