Date: Thu, 5 Apr 2001 22:07:53 -0400 From: freematt@coil.com (Matthew Gaylor) Subject: More from Professor Swire RE: DefendYourPrivacy.com: Just the To: freematt@coil.com (Matthew Gaylor)
From: "Peter Swire" <swire.1@osu.edu> Subject: RE: DefendYourPrivacy.com: Just the Facts, mam! Date: Thu, 5 Apr 2001 21:46:40 -0400
OK. Glad that we're talking about substance.
1. "The fact is that these regulation give private persons the right to access personal medical information witout individual consent for a variety of reasons". Here is a key point. The regulation does not "give the right to access." Any such rights already exist. Current law allows the access. This is the first national rule that will limit the ability of third parties to get access to your medical records except when they get consent. It limits many types of access, but not all types of access, for the sorts of reasons given in my previous post.
2. "Blowing a hole in the Fourth Amendment." There is indeed a debate worth having about the standard before law enforcement officials get to see medical records. If the police want to see medical records in your home, they need a warrant. If they want to see medical records in the hospital, current law allows them to ask the hospital and the 4th Amendment has been interpreted to say that the hospital can release the records if it wishes. (The recent Supreme Court case about the pregnant women in South Carolina may be the beginning of a trend theother way.) Today, standard practice in many places is for police to seek medical records without any administrative or judicial process. The question is what the standard should be before the police can get records from the hospital or insurance company. The ACLU has said a full judicial warrant is needed. Current law says no process is needed. The rule is somewhere in the middle, placing a new requirement of judicial or administrative process before the hospital can turn over the records (with some exceptions, analogous to exceptions that apply in the 4th Amendment context). Some law enforcement officials have said that the rule is burdensome on priority law enforcement uses, while some civil liberties groups have complained the rule is not strict enough. You make the call on this.
3. Plain language and the "national priority uses." The language on national priority uses is similar to language used in other parts of the rule about the sort of showing that is needed before private enities can get access to medical records. You have asked why the rule is not clearer here -- why the plain language does not explain all the legal safeguards in place against an abusive misuse of regulatory authority. As someone who teaches in the administrative law area, I know that it is usually not common practice to recite existing administrative procedure safeguards over and over again in a rule for each provision. My comments to HHS explain my own reading of the provision, including an account of some of the principle safeguards. This is just a recollection and I have not checked back to the proposed rule. My (well-intentioned but perhaps feeble) recollection is that similar language was in the proposed rule. This particular provision did not attract a major response, and so there may not be as extensive responses to comments on this issue as for other issues. As a disclaimer, I state that I personally read a whole lot but not nearly all of the 52,000 comments on the proposed rule. It might help the debate if someone (and maybe I'll do it) checks back against the proposed rule and the comments on the rule.
4. Commerce or General Welfare clause. Sounds like there is simply a disagreement here that goes way beyond medical privacy. Query: is it constitutional to have the accompanying rule that sets standard protocols for sharing electronic health records? This "transaction rule" derives from the same statute as the privacy rule. The intent of Congress was to move toward electronic health records, but to assure confidentiality at the same time.
Peter
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