In cases stretching back years, the federal courts have upheld
Americans' fundamental right to keep prying eyes from obtaining access
to their most personal health information.
Why, then, have the courts of late been unable, or unwilling, to
plug the biggest potential lapse in patient privacy - one triggered by
a Bush administration policy?
That's a question of national importance as well as local interest,
since the legal battle over patient privacy is being played out in
federal court in Philadelphia.
In successive rulings - most recently by the U.S. Court of Appeals
for the Third Circuit - judges have written opinions that express
support for patient privacy. But their decisions would actually allow
wider access to patient data.
Under challenge is a so-called federal "privacy rule" enacted in
2003 as part of HIPAA, the Health Insurance Portability and
Accountability Act of 1996. Patient groups, physicians and privacy
advocates make a compelling case that HIPAA's privacy protections are
an illusion.
With an Orwellian turn of phrase, the "privacy rule" has little to
do with patient confidentiality. In fact, it permits the widespread
sharing of medical data among 800,000 or so health, business and
government entities.
Patients can limit access to their medical information if they
refrain from seeking care, especially for mental health and other
sensitive illnesses such as cancer and AIDS. But that's neither good
medicine nor good public health policy.
The HIPAA regulation was enacted in the name of streamlining
health-care services and cutting red tape while protecting sensitive
health data. But its undisputed side effect has been to rupture any
notion of patient privacy.
Even worse, the rule as rewritten by administration officials says a
patient's consent is not needed to share his health information. (An
earlier version crafted by the Clinton White House gave patients far
more control over their records.)
In a recent ruling, Third Circuit Judges Marjorie O. Rendell,
Theodore A. McKee and Richard L. Nygaard noted their skepticism of
Justice Department claims that Americans' medical records are secure.
But the judges turned down the legal challenge to the HIPAA rule and
came to the surprising and troubling conclusion that it isn't the
government's fault if health-care providers infringe upon patient
privacy.
There's enough confusion surrounding the ruling to warrant a second
look by the entire Third Circuit appeals court. Failing that, the
Supreme Court needs to clarify whether patients have a meaningful right
to protect their medical records.
An even better prescription for patient privacy would be for
Congress to restore patients' right of consent over the use of their
medical records. A proposal that does that from Rep. Edward J. Markey
(D., Mass.) - so far shunned by Republican leaders - illustrates how
that could be done without hampering health-care providers' important
work.
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