THE LIBERTARIAN ENTERPRISE
Number 7, April 1996

Or, If You'd Prefer, We Have This Lovely New Medical Bureaucracy ...

by Vin Suprynowicz

Special to The Libertarian Enterprise

         Medical records should be private.
         There are a few minor exceptions. Deaths must be made public on a timely basis, since they can affect the status of debts and other legal obligations. There may be some right to inquire whether legally-required mental competency hearings have been held, to make sure no one's locked up indefinitely in a nuthouse with no one the wiser.
         And reporters -- anyone, really -- have traditionally had the right to call and ask the general condition of someone in a hospital ("stable," "critical," "treated and released") following a crime, accident, or disaster.
         Such minor exceptions have generally been handled just fine via common consent, the canons of medical ethics, and state guidelines when required.
         Now, The United States Senate proposes the Medical Records Confidentiality Act of 1995, which would federalize criminal sanctions for the inappropriate release of medical records, calling for federal imprisonment or fines of up to $250,000.
         Sponsor Sen. Robert Bennett, R-Utah, says federal regulation is necessary because state safeguards are inconsistent.
         But that was precisely the intent of the Founders -- that states be allowed to handle such matters differently, as local circumstances dictate. No less an authority than Thomas Jefferson warned that -- if we ever mimicked the condition of France, where the equivalent of our "states" are nothing more than administrative "Departments" of one uniform, centralized government -- the American freedoms he'd so carefully helped to safeguard would be irretrievably lost.
         Sen. Bennett's bill would establish a huge new federal bureaucracy to "develop a model notice of a Health Information Trustee's (HIT) information practices," requiring under Section 102, Subtitle B, that every "HIT maintain; administrative, technical and physical confidentiality safeguards; and for at least seven years, a record of any PHI (Protected Health Information) disclosure not related to treatment. ..."
         Great. The one thing our doctors don't see enough of these days is government paperwork, all of which (of course) adds to the final cost for the patient.
         Then, add the invariable tendency of federal bureaucrats to take such laws as mere starting points and run them out to their furthest imaginable limits. A Louisiana congressman recently proposed re-naming Nevada "the wetlands state" when he learned that a proposed federal EPA wetlands definition, based on percolation rates, could have set aside many of Southern Nevada's hard-baked desert soils as "protected" swamps. (The souvenir taxidermy possibilities might at least be lucrative: little "desert alligators" with glued-on jackalope horns?)
         But beyond that, it now appears Sen. Bennett's bill -- as is so often the case -- could actually make access to our medical records easier for precisely the folks from whom we might most want them kept secret -- the government.
         Section 207 "allows disclosure to a health oversight agency for an oversight function authorized by law." Section 208 "allows specified entities to disclose PHI (Protected Health Information) to a public health authority or other person authorized by law ..." Section 209 "specifies the circumstances in which disclosure to a certified institutional review board is allowed." Section 210 "allows specified entities to disclose PHI in connection with certain judicial or administrative proceedings." Section 211 "allows specified entities to disclose PHI pursuant to a subpoena if certain procedures are followed. ..."
         Deducted some medical expenses on your income tax? Don't be surprised to see your X-rays hanging up on a lightbox for discussion the next time you're called to an IRS audit. (Remember when we were told, years ago, that no Fifth Amendment self-incrimination problem loomed in the tax prosecution of Al Capone, that Scarface Al would have had no worries at all had he reported his criminal income and paid taxes on it, since the IRS would never cooperate or share such information with any other agency? Can we say "Interagency Drug Task Force?" Remember when we were told that a harmless little thing like federal deposit insurance would never turn your neighborhood bank into a de facto branch office of the Potentates on the Potomac, happily sending the IRS every penny in your account on demand, without so much as asking to see a signed court order?)
         Just for good measure, the Coalition for Patient Rights of New England warns this bill could also make it easier for insurance companies to develop data networks of medical records.
         Is there a problem here worth solving? True, patients are usually asked to sign overly-broad waivers to allow their files to be shared between consulting physicians. And Maxwell Mehlman, director of the medical law center at Case Western Reserve University, says that means that nowadays "People who can discriminate, like employers and insurers, are getting access to these records."
         But shouldn't we find out precisely why and how (and how often) that's happening, before assuming a huge new federal bureaucracy is the cheapest and most effective remedy? Has the Senate even checked to see why civil liability provisions aren't doing the job?
         "It would be better to allow states to set privacy guidelines instead of the federal government," says Larry Matheis, executive director of the Nevada State Medical Association.
         Yep.

Vin Suprynowicz is the assistant editorial page editor of the Las Vegas Review-Journal. Readers may contact him via e-mail at vin@lvrj.com. The web site for the Suprynowicz column is at http://www.nguworld.com/vindex/. The column is syndicated in the United States and Canada via Mountain Media Syndications, P.O. Box 4422, Las Vegas Nev. 89127.


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