--- >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> _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
This archive was generated by hypermail 2.1.3 : Thu Aug 12 2004 - 07:17:01 PDT