ACLU Dismayed At Implementation of Flawed Medical Privacy Regulations

August 9, 2002 12:00 am

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WASHINGTON – Saying the Bush Administration’s final federal medical privacy regulation fails to fulfill its promise of safeguarding arguably the most sensitive personal information, the American Civil Liberties Union expressed dismay at the final regulation and called for a legislative fix.

“This regulation takes one step forward and two steps back,” said Katie Corrigan, an ACLU Legislative Counsel. “By eliminating consent requirements for certain health care functions, the Bush Administration is taking power away from the patient and putting it in the hands of federal bureaucrats.”

The ACLU is especially concerned with a provision in the regulation that allows law enforcement unchecked access to individual medical records, without a warrant or even notice to the individual whose medical records are at issue. When it comes to medical records — arguably the most sensitive of all private information — law enforcement should be held at least to the same Fourth Amendment-like requirements used for video records and cable programming subscriptions, the ACLU’s Corrigan said.

Also troubling to the ACLU is the absence in several instances of patient consent requirements. The regulation does not require patient consent before highly sensitive personal medical records are used or disclosed for the purposes of treatment, payment and various health care operations. Doctors simply need notify patients that their records will be disclosed.

“The touchstone of medical records privacy is patient consent,” Corrigan said. “By coupling this erosion of consent requirements with the unchecked ability of law enforcement to say ‘Hey, this guy looks suspicious, let’s go fish around in his records,’ the Administration fails to provide Americans with meaningful privacy protections for medical information.”

Privacy protections for teenagers’ medical records are also affected by the new regulation. Many teens avoid sensitive health care services — such as mental health care, substance abuse counseling and treatment for sexually transmitted diseases — because they fear their records will be revealed to their parents.

While the ACLU had argued that the regulation should protect teens’ records from disclosure in the limited circumstances where they can lawfully consent, the new regulation defers to state law and health care providers’ discretion. The ACLU called upon providers to follow sound ethical and medical protocols to maintain, where appropriate, the confidences of their minor patients.

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