[Politech] Rep. Ron Paul on problems with medical "privacy" laws [priv]

From: Declan McCullagh (declan@private)
Date: Wed Oct 08 2003 - 23:11:22 PDT

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    From: "Singleton, Norman" <Norman.Singleton@private>
    To: Declan McCullagh <declan@private>
    Subject: FW: [Politech] Katharina Kopp defends HIPAA federal health privac
    	y laws
    Date: Wed, 8 Oct 2003 11:06:46 -0400
    Repeal the So-Called "Medical Privacy Rule"
    Mr. Speaker, I rise to introduce the Patient Privacy Act. This bill repeals
    the misnamed Medical Privacy regulation, which went into effect on April 14
    and actually destroys individual medical privacy. The Patient Privacy Act
    also repeals those sections of the Health Insurance Portability and
    Accountability Act of 1996 authorizing the establishment of a "standard
    unique health care identifier" for all Americans, as well as prohibiting the
    use of federal funds to develop or implement a database containing personal
    health information. Both of these threats to medical freedom grew out of the
    Clinton-era craze to nationalize health care as much as politically
    Establishment of a uniform medical identifier would allow federal
    bureaucrats to track every citizen's medical history from cradle to grave.
    Furthermore, as explained in more detail below, it is possible that every
    medical professional, hospital, and Health Maintenance Organization (HMO) in
    the country would be able to access an individual citizen's records simply
    by entering an identifier into a health care database.
    The dangers to liberty inherent in the "uniform health identifier" are
    magnified by the so-called "medical privacy" regulation. Many things in
    Washington are misnamed, however, this regulation may be the most blatant
    case of false advertising I have come across in all my years in Congress.
    Rather than protecting the individual's right to medical privacy, these
    regulations empower government officials to determine how much medical
    privacy an individual "needs.'' This one-size-fits-all approach ignores the
    fact that different people may prefer different levels of privacy. Some
    individuals may be willing to exchange a great deal of their personal
    medical information in order to obtain certain benefits, such as
    lower-priced care or having information targeted to their medical needs sent
    to them in a timely manner. Others may forgo those benefits in order to
    limit the number of people who have access to their medical history. Federal
    bureaucrats cannot possibly know, much less meet, the optimal level of
    privacy for each individual. In contrast, the free market allows individuals
    to obtain the level of privacy protection they desire.
    The so-called medical privacy regulations and uniform health identifier
    scheme not only reduce an individual's ability to determine who has access
    to his personal medical information, but actually threaten medical privacy
    and constitutionally-protected liberties. For example, these regulations
    allow law enforcement and other government officials access to a citizen's
    private medical records without having to obtain a search warrant.
    Allowing government officials to access a private person's medical records
    without a warrant is a violation of the Fourth amendment to the United
    States Constitution, which protects American citizens from warrantless
    searches by government officials. The requirement that law enforcement
    officials obtain a warrant from a judge before searching private documents
    is one of the fundamental protections against abuse of the government's
    power to seize an individual's private documents. While the Fourth Amendment
    has been interpreted to allow warrantless searches in emergency situations,
    it is hard to conceive of a situation where law enforcement officials would
    be unable to obtain a warrant before electronic medical records would be
    Mr. Speaker, these regulations also require health care providers to give
    medical records to the federal government for inclusion in a federal health
    care data system. Such a system would contain all citizens' personal health
    care information, accessible to anyone who knows the individual's unique
    health identifier.  History shows that when the government collects this
    type of personal information, the inevitable result is the abuse of
    citizens' privacy and liberty by unscrupulous government officials. The only
    fail-safe privacy protection is for the government not to collect and store
    this type of personal information.
    In addition to law enforcement, these so-called privacy protection
    regulations create a privileged class of people with a federally-guaranteed
    right to see an individual's medical records without the individual's
    consent. My medical office recently received a Model "Privacy Act
    Compliance" form. This three-page form lists over 20 situations where
    medical information may be disclosed without individual consent. Medical
    information may be disclosed to attorneys, business associates of the
    provider, and federal agencies conducting "health oversight activities."
    Medical information may also be divulged without consent to insurance
    companies and medical researchers!
    Medical researchers claim to be able to protect the autonomy of their
    unwilling subjects, but the fact is that allowing third parties to use
    medical records for research purposes increases the risk of inadvertent
    identification of personal medical information. I am aware of at least one
    incident where a man had his identity revealed when his medical records were
    used without his consent. As a result, many people in his community
    discovered details of his medical history that he wished to keep private!
    Forcing individuals to divulge medical information without their consent
    also runs afoul of the Fifth amendment's prohibition on taking private
    property for public use without just compensation. After all, people do have
    a legitimate property interest in their private information. Therefore,
    restrictions on an individual's ability to control the dissemination of
    their private information represents a massive regulatory taking. The
    takings clause is designed to prevent this type of sacrifice of individual
    property rights for the "greater good.''
    In a free society such as the one envisioned by those who drafted the
    Constitution, the federal government should never force a citizen to divulge
    personal information to advance "important social goals."  Rather, it should
    be up to individuals, not the government, to determine what social goals are
    important enough to warrant allowing others access to their personal
    property, including their personal information. To the extent these
    regulations sacrifice individual rights in the name of a bureaucratically
    determined common good, they are incompatible with a free society and a
    constitutional government.
    As an OB-GYN with more than 30 years experience in private practice, I am
    very concerned by the threat to medical practice posed by these privacy
    regulations and the unique health identifier scheme. The confidential
    physician-patient relationship is the basis of good health care.
    Oftentimes, effective treatment depends on the patient's ability to place
    absolute trust in his doctor. The legal system has acknowledged the
    importance of maintaining physician-patient confidentiality by granting
    physicians a privilege not to divulge confidential patient information.
    I ask my colleagues to consider how comfortable you would be confiding an
    embarrassing physical or emotional problem to your physicians if you knew
    that any and all information given your doctor may be placed in a government
    database or seen by medical researchers, handed over to government agents
    without so much as a simple warrant or accessed by anyone who happens to
    know your unique health identifier?
    By now it should be clear to every member of Congress that the American
    people do not want their health information recorded on a database, and they
    do not wish to be assigned a unique health identifier. According to a survey
    by the respected Gallup Company, 91 percent of Americans oppose assigning
    Americans a unique health care identifier, while 92 percent of the people
    oppose allowing government agencies the unrestrained power to view private
    medical records and 88 percent of Americans oppose placing private health
    care information in a national database. Congress has acknowledge this
    public concern by including language forbidding the expenditure of funds to
    implement or develop a medical identifier in the federal budget for the past
    five fiscal years. Rather than continuing to extend the prohibition on
    funding for another year, Congress should finally obey the wishes of the
    American people by repealing the authorization of the individual medical ID
    this year as well as repealing these dangerous medical privacy rules.
    Mr. Speaker, the misnamed medical privacy regulations and the scheme to
    assign all Americans a unique health care identifier violates the Fourth and
    Fifth amendments by allowing law enforcement officials and government
    favored special interests to seize medical records without an individual's
    consent or a warrant. Federal supervision of who can access medical records,
    combined with a federally-assigned medical ID, facilitate the creation of a
    federal database containing the health care data of every American citizen.
    These developments could undermine the doctor-patient relationship and thus
    worsen the health care of millions of Americans. I, therefore, call on my
    colleagues to join me in repealing these threats to privacy and quality
    health care by cosponsoring the Patient Privacy Act.
    Norman Kirk Singleton
    Legislative Director
    Congressman Ron Paul
    203 Cannon
    "Mankind is so fallen that not man can be trusted with unchecked power over
    his fellows."
                   C.S. Lewis
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