ACLU Says Flaws in Bush Medical Privacy Proposal Need Legislative Fix

April 16, 2002 12:00 am

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WASHINGTON – Saying the Bush Administration’s proposed changes to the medical privacy regulation greatly weaken a promising step forward in protecting medical records privacy, the American Civil Liberties Union today urged Congress to pass legislation to repair the regulations before final implementation.

“By eliminating consent requirements for certain health care functions and for marketing activities, the Bush Administration is taking power away from the patient,” said Laura Murphy, Executive Director of the ACLU Washington Office. “Patients – not the health care industry or the government – should have the ultimate control over what medical information is shared with doctors, insurance providers, and marketing companies.”

“Congress should act to protect patient privacy in the face of this rollback in protection,” she added.

The ACLU is particularly concerned with proposed changes that would eliminate the need for patient consent in certain circumstances. The first would remove the requirement that patients give their consent before their highly sensitive personal medical records are used or disclosed for the purposes of treatment, payment, and health care operations. The regulations as they now stand simply require a doctor to notify a patient that their records will be disclosed for these purposes.

The second involves the disclosure of medical records for marketing purposes, a practice against which the Administration claimed to have actually bolstered the regulations. In reality, the ACLU said, the proposed changes redefine the term “marketing” narrowly, allowing private marketing companies to access personal medical information, without patient consent, for the purposes of promoting health care products or pharmaceuticals related to treatment and other health care functions.

“The touchstone of medical records privacy is patient consent,” Murphy said. “These proposed changes remove that critical protection for a broad range of activities and thereby weaken the baseline of patient privacy.”

In addition, the ACLU is concerned about proposed changes to the provisions governing minors’ health information.

“Teenagers should have the right to maintain the privacy of health records about sensitive services — such as mental health care, substance abuse treatment, and testing and treatment for sexually transmitted diseases — to which they legally consent on their own,” said Catherine Weiss, Director of the ACLU Reproductive Freedom Project. “Instead, the Department proposes to allow state governments, health insurance plans, and health care providers to decide whether to disclose such sensitive information to parents.”

The ACLU urges the Department to retain the current regulation which carefully balances teenagers’ need for confidential health care in particular circumstances with parents’ general need to be informed.

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