[Politech] Three replies on Big Brother chatting with your doctor [priv]

From: Declan McCullagh (declan@private)
Date: Thu Aug 12 2004 - 06:19:56 PDT


---

>From: "Peter Swire" <peter@private>
>To: "'Declan McCullagh'" <declan@private>
>Subject: RE: [Politech] Big Brother is now talking to your doctor? [priv]
>Date: Tue, 10 Aug 2004 12:26:23 -0400
>
>Hi Declan:
>
>         Given previous debates on your list on medical privacy, I
>thought it might be helpful to explain very briefly how the Pennsylvania
>drivers' license story fits in with the HIPAA privacy rules.
>
>         Put simply, HIPAA does not alter the outcome in Pennsylvania.
>HIPAA says that doctors and hospitals can disclose information as
>"required by law."  The doctor here apparently decided that disclosure
>to Motor Vehicles was "required by law" and did the disclosure.  The
>places to complain would be: (1) the doctor, if the disclosure is not
>actually required; (2) the Pennsylvania legislature, if the law requires
>disclosure of this; and (3) Motor Vehicles, if it cancels a drivers'
>license based on such flimsy evidence.
>
>         The bigger, and related, medical privacy news today is the
>excellent article by Robert Pear on the front page of the NY Times.  The
>Bush Administration plans to require hospitals that receive federal
>funding to ask questions including: "Are you a United States citizen?";
>"Are you a lawful permanent resident, an alien with a valid current
>employment authorization card or other qualified alien?" and others.
>Hospital employees have to certify the answers are true and complete, on
>pain of civil and criminal penalties.
>
>         What undocumented alien, including undocumented parents seeking
>care for their citizen children, would dare go to the hospital in the
>face of these questions?  The Pennsylvania and immigration stories are
>similar because the government is requiring doctors to participate in
>surveillance.
>
>         The risk is obvious and large.  Do we think the next outbreak of
>SARS will politely avoid infecting non-citizens?  Our best defense
>against infectious diseases and bioterrorism is to ensure that sick
>people come into the healthcare system.  The new measures announced in
>the Pear article today increase the risk that people will not get the
>health care they need, putting themselves and the rest of our society at
>greater medical risk.
>
>Peter
>
>Prof. Peter Swire
>Moritz College of Law of the
>     Ohio State University
>John Glenn Scholar in Public Policy Research
>Formerly, Chief Counselor for Privacy in the
>     U.S. Office of Management & Budget
>(240) 994-4142, www.peterswire.net




>From: "Gordon Brandt"
>To: "'Declan McCullagh'" <declan@private>
>Subject: RE: [Politech] Big Brother is now talking to your doctor? [priv] 
>(Obscure/hide email please)
>Date: Tue, 10 Aug 2004 12:24:50 -0400
>
>Please hide/anti-spam the email please.  Thank you
>
>Declan,
>
>Interesting that I see your article, and then later in the day see this:
>
>http://www.nytimes.com/2004/08/10/politics/10health.html?hp=&pagewanted=prin
>t&position=
>WASHINGTON, Aug. 9 - The federal government is offering $1 billion to
>hospitals that provide emergency care to undocumented immigrants. But to get
>the money, hospitals would have to ask patients about their immigration
>status, a prospect that alarms hospitals and advocates for immigrants.
>
>And last night, on the local news,
>http://www.wgrz.com/news/news_article.aspx?storyid=22280
>Susan Parry is a nurse who's very familiar with the new HIPAA laws about
>medical privacy. That's why she was surpised to find her medical records
>were now at another doctor's office after her doctor retired due to illness.
>
>Susan Parry: "They were transferred to a physician that I don't have
>intentions of going to, without my permission. I work with HIPAA every day.
>I feel like it's an invasion of my privacy. What's more personal than
>medical records?"
>
>This seems to be occuring much more recently, or this is just a strange
>confluence of stories.
>
>Thanks for the great work,
>
>Gordon





>X-WELL-Auth: No
>To: cmauthe@private, declan@private
>From: Liz Ditz <ponytrax@private>
>Subject: "Big Brother" or appropriate intervention?
>Date: Wed, 11 Aug 2004 15:25:40 -0700
>
>California has had a law on the books since the late 1980s/early 
>1990s.    How do I know this?  My late mother drove while intoxicated on a 
>regular basis, and we researched what would have to happen to get her 
>license suspended.   In the opposite of the PA story you reported, we 
>could not convince her physician to do the reporting.
>
>Oh, and while we are on this one, what about physicians  refusing to 
>prescribe birth control pills, and pharmacists refusing to fill the 
>prescriptions?
>
>PHYSICAL AND MENTAL CONDITIONS PHYSICIANS ARE REQUIRED TO REPORT
>
>Health and Safety Code Section 103900 requires physicians and surgeons to 
>report patients at least 14 years of age who are diagnosed as having a 
>lapses of consciousness or dementia (mental disorders) conditions or 
>related disorders.
>
>Although not required by law, any other condition may be reported by 
>physicians when they believe a patient cannot drive safely because of a 
>medical condition.
>
><http://www.dmv.ca.gov/pubs/vctop/appndxa/hlthsaf/hs103900.htm>http://www.dmv.ca.gov/pubs/vctop/appndxa/hlthsaf/hs103900.htm 
>
>103900.   (a) Every physician and surgeon shall report immediately to the 
>local health officer in writing, the name, date of birth, and address of 
>every patient at least 14 years of age or older whom the physician and 
>surgeon has diagnosed as having a case of a disorder characterized by 
>lapses of consciousness. However, if a physician and surgeon reasonably 
>and in good faith believes that the reporting of a patient will serve the 
>public interest, he or she may report a patient's condition even if it may 
>not be required under the department's definition of disorders 
>characterized by lapses of consciousness pursuant to subdivision (d).
>
>(b) The local health officer shall report in writing to the Department of 
>Motor Vehicles the name, age, and address, of every person reported to it 
>as a case of a disorder characterized by lapses of consciousness.
>
>(c) These reports shall be for the information of the Department of Motor 
>Vehicles in enforcing the Vehicle Code, and shall be kept confidential and 
>used solely for the purpose of determining the eligibility of any person 
>to operate a motor vehicle on the highways of this state.
>
>(d) The department, in cooperation with the Department of Motor Vehicles, 
>shall define disorders characterized by lapses of consciousness based upon 
>existing clinical standards for that definition for purposes of this 
>section and shall include Alzheimer's disease and those related disorders 
>that are severe enough to be likely to impair a person's ability to 
>operate a motor vehicle in the definition. The department, in cooperation 
>with the Department of Motor Vehicles, shall list those circumstances that 
>shall not require reporting pursuant to subdivision (a) because the 
>patient is unable to ever operate a motor vehicle or is otherwise unlikely 
>to represent a danger that requires reporting. The department shall 
>consult with professional medical organizations whose members have 
>specific expertise in the diagnosis and treatment of those disorders in 
>the development of the definition of what constitutes a disorder 
>characterized by lapses of consciousness as well as definitions of 
>functional severity to guide reporting so that diagnosed cases reported 
>pursuant to this section are only those where there is reason to believe 
>that the patients' conditions are likely to impair their ability to 
>operate a motor vehicle. The department shall complete the definition on 
>or before January 1, 1992.
>
>(e) The Department of Motor Vehicles shall, in consultation with the 
>professional medical organizations specified in subdivision (d), develop 
>guidelines designed to enhance the monitoring of patients affected with 
>disorders specified in this section in order to assist with the patients' 
>compliance with restrictions imposed by the Department of Motor Vehicles 
>on the patients' licenses to operate a motor vehicle. The guidelines shall 
>be completed on or before January 1, 1992.
>
>(f) A physician and surgeon who reports a patent diagnosed as a case of a 
>disorder characterized by lapses of consciousness pursuant to this section 
>shall not be civilly or criminally liable to any patient for making any 
>report required or authorized by this section.
>
>
>In addition, California has a way for persons to report anonymously
>
><http://www.driversed.com/enroll/dmv_book/dmv_health.html>http://www.driversed.com/enroll/dmv_book/dmv_health.html 
>
>
>HOW TO REFER AN UNSAFE DRIVER
>
>If you are concerned for the safety of a family member, friend, or other 
>person who can no longer drive safely, you may write to your local Driver 
>Safety Office or the address given below. The form is also available 
>online. Provide the person’s name, birth date, driver license number and 
>current address, and explain what you observed that led you to believe the 
>person is an unsafe driver. The letter must be signed; however, you may 
>request that your name be kept confidential.
>
>Mail your letter to:
>
>Department of Motor Vehicles
>Driver Safety Actions Unit M/S J234
>P.O. Box 942890
>Sacramento, CA 94290-0001
>
>DMV will contact the person for a reexamination and he or she could be 
>suspended depending on the person’s driving record. A driving test will be 
>given to any person when a:
>         •       Physician reports the person has lapses of consciousness.
>         •       Traffic officer requests a DMV review and the officer 
> believes the driver is incapable of operating a vehicle safely.
>         •       Relative makes a good-faith report to DMV stating the 
> driver cannot safely operate a vehicle.
>
><http://www.dmv.ca.gov/pubs/brochures/fast_facts/ffdl10.htm>http://www.dmv.ca.gov/pubs/brochures/fast_facts/ffdl10.htm 
>
>
>Unsafe Driver
>
>
>If you know someone who may no longer be able to drive safely, you may 
>request that the Department of Motor Vehicles (DMV) review his or her 
>driving qualifications. This form is provided for your convenience. If you 
>prefer, you may write a letter to your local Driver Safety office to 
>identify the driver you want to report and give your reason(s) for making 
>the report.
>
>Confidentiality
>
>You may ask to keep your name confidential and DMV will make every attempt 
>not to disclose your identity. We understand that reporting someone, 
>especially a patient, relative, or close friend, is a sensitive issue and 
>DMV does not want to harm your relationship with that person. However, we 
>also want to make sure that potentially unsafe drivers are evaluated. All 
>records received by DMV which report a physical or mental condition are 
>confidential and cannot be made public (VC §1808.5). DMV may not be able 
>to keep the report confidential if ordered to release this information by 
>a court.
>
>
>**********
>Liz Ditz
>650-303-5967
>
>blog: <http://lizditz.typepad.com>http://lizditz.typepad.com
>
>Success: fall down seven times, stand up eight. </blockquote></x-html>

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