By DEB RIECHMANN
WASHINGTON — Congress is expected to scrutinize new rules President Clinton issued on Wednesday that, for the first time, restrict who can see a person’s medical records.
Donna Shalala, secretary of Health and Human Services, predicted lawmakers will find the regulations balanced.
"It gives Americans the power to find out who’s looking in their records and for what purpose, what’s in their records, how to get them, how to correct errors," Shalala told reporters.
Even though technology allows personal medical information to bounce from one computer to the next, no federal law protects a person’s medical privacy.
Clinton said he was doing the most he could to protect individual medical records, and urged Congress to pass even more protections.
"With a click of a mouse, your personal health information can be accessed without your consent by people you don’t know who aren’t physicians — for reasons that have nothing to do with your health care," Clinton said.
"It doesn’t take a doctor to understand that is a prescription for abuse. Employers, for instance, shouldn’t see medical records, except for limited reasons, such as to process insurance claims. Yet, too often they do."
President-elect Bush could undo the rules with a new regulation, but starting the regulatory review process over would be a monumental task.
"Medical privacy is an important issue, but not one that dominated the recent election campaign. It is certainly to be an issue for public discussion and debate in the future," said Ray Sullivan, a spokesman for Bush.
Congress also could overturn the regulations, which take effect in about two years.
"They’ll hold hearings early in the new Congress to review the regulations and determine whether they should be added to or changed," said Joe Karpinski, a spokesman for the Senate Health and Education Committee. "They’ll be looking at what did they do. Did the administration have the authority to go as far as they did?"
Among the issues the Senate might examine is whether the administration had the power to include paper as well as electronic records. Initially, the Department of Health and Human Services included just electronic data. But the final rule covers all the records of any doctor or hospital that files insurance claims electronically.
Even if Congress objects, it would be hard for opponents to muster enough votes to pass new legislation. Congress tried for three years but failed to find a compromise formula that would win passage. And that was amid widespread agreement that legislation was needed. Now, with the regulation in place, the urgency might be gone.
The rules were issued after Congress in 1996 gave itself three years to pass legislation, stipulating that the Department of Health and Human Services could write regulations if it failed.
Under the rules, patients could sign a one-time consent form on their first visit to a doctor allowing disclosures for routine matters like billing and treatment. But they would have to explicitly authorize most other uses of their records.
Patients also are gaining the right to inspect and request corrections to their records. And employers will be barred from perusing medical information about workers unless it’s directly related to providing health care.
Violators face civil and criminal fines and, in severe cases, prison.
In a change won by industry, the administration deleted a provision that could have opened the door for patients to sue if their records were improperly released.
Law enforcement agencies could obtain access to records with an administrative subpoena or summons, but they would not have to go to court as advocates would have liked.
"That’s just not practical, but they’ve got to do something that makes them stop, think that they’ve got a reason for doing this," Shalala said. "We don’t believe law enforcement should have unfettered access to our health care records."
The American Medical Association reacted with caution to the new rules.
"We will be closely examining the new rules to make sure there are no dangerous loopholes or unexpected problems," said Dr. Donald Palmisano, a surgeon from New Orleans who is a trustee on the AMA board and an expert on patient privacy issues.
The health industry supports the notion of improved medical privacy, but worries because the rule allows states to write even stricter standards.
"Without uniformity, the regulations are going to cause more, not less, confusion," said Chip Kahn, president of the Health Insurance Association of America.
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