Bush Administration to ‘Weaken’ Federal Patient Privacy Rule, Newspapers Report

Two newspapers this weekend reported on the Bush administration's recent decision to amend several provisions of a new medical privacy rule issued by the Clinton administration and set to take effect April 4. The administration concluded that the provisions "are unworkable and must be revised," the New York Times reports. In a "victory for the health care industry," administration officials said that the rules would be altered, although they added that the regulations would not be entirely overhauled (Pear, New York Times, 4/8). Under the rule, which would establish "the first federal right to privacy for medical records," patients would be allowed to view and copy their medical records and amend them if they found mistakes. Providers would have to get written consent from patients before disclosing information from their medical records (Holland, Albany Times Union, 4/8). HHS Secretary Tommy Thompson told the Times that "scores of experts" had said the rule, issued last December, would impose a "tremendous" cost and burden to the industry, adding that he anticipates that "there will be some modifications to simplify the rule and to lessen the financial burden." Under legal precedent, the administration must now go through a "reasoned decision-making process" in changing the rule. The Times reports that the administration viewed the following provisions of the rule as unworkable:

• Providers, including pharmacists, would have to obtain written consent from patients "before using or disclosing personal medical information even for routine purposes like treatment or the payment of claims." The Times notes that the proposed rule, issued in November 1999 and not as strict as the final rule published in December 2000, actually "went to great lengths ... to explain why" a consent provision covering treatment and payment information "was unrealistic and unworkable." However, it was included in the final rule. Carlos Ortiz, director of government affairs at CVS Corp., called the consent provision a "prescription for chaos," adding, "Under the rules, a pharmacy could not even begin filling a prescription unless it had a signed, written consent from the patient. That requirement would increase waiting times and inconvenience patients."
• The rule would also extend the consent requirements to oral communication of medical information. Calling such a provision "way overboard," American Hospital Association vice president Melinda Hatton said, "Doctors could be inhibited from talking to one another, to nurses and even to patients in places where other people might be present."
• Providers and insurers would have to "limit the use and disclosure of personal health information, divulging no more than the 'minimum necessary' to accomplish a specific purpose."
• Providers would have to "ensure that their lawyers, auditors, billing companies and other 'business associates' comply with the federal privacy rules" (New York Times, 4/8).