Rep. Ron Paul on problems with medical "privacy" laws [priv]

[Declan McCullagh <declan () well com>]

---

From: "Singleton, Norman" <Norman.Singleton () mail house gov>
To: Declan McCullagh <declan () well com>
Subject: FW: [Politech] Katharina Kopp defends HIPAA federal health privac
        y laws
Date: Wed, 8 Oct 2003 11:06:46 -0400

http://www.house.gov/paul/congrec/congrec2003/cr041603.htm

Repeal the So-Called "Medical Privacy Rule"

Mr. Speaker, I rise to introduce the Patient Privacy Act. This bill repeals
the misnamed Medical Privacy regulation, which went into effect on April 14
and actually destroys individual medical privacy. The Patient Privacy Act
also repeals those sections of the Health Insurance Portability and
Accountability Act of 1996 authorizing the establishment of a "standard
unique health care identifier" for all Americans, as well as prohibiting the
use of federal funds to develop or implement a database containing personal
health information. Both of these threats to medical freedom grew out of the
Clinton-era craze to nationalize health care as much as politically
possible.

Establishment of a uniform medical identifier would allow federal
bureaucrats to track every citizen's medical history from cradle to grave.
Furthermore, as explained in more detail below, it is possible that every
medical professional, hospital, and Health Maintenance Organization (HMO) in
the country would be able to access an individual citizen's records simply
by entering an identifier into a health care database.

The dangers to liberty inherent in the "uniform health identifier" are
magnified by the so-called "medical privacy" regulation. Many things in
Washington are misnamed, however, this regulation may be the most blatant
case of false advertising I have come across in all my years in Congress.
Rather than protecting the individual's right to medical privacy, these
regulations empower government officials to determine how much medical
privacy an individual "needs.'' This one-size-fits-all approach ignores the
fact that different people may prefer different levels of privacy. Some
individuals may be willing to exchange a great deal of their personal
medical information in order to obtain certain benefits, such as
lower-priced care or having information targeted to their medical needs sent
to them in a timely manner. Others may forgo those benefits in order to
limit the number of people who have access to their medical history. Federal
bureaucrats cannot possibly know, much less meet, the optimal level of
privacy for each individual. In contrast, the free market allows individuals
to obtain the level of privacy protection they desire.

The so-called medical privacy regulations and uniform health identifier
scheme not only reduce an individual's ability to determine who has access
to his personal medical information, but actually threaten medical privacy
and constitutionally-protected liberties. For example, these regulations
allow law enforcement and other government officials access to a citizen's
private medical records without having to obtain a search warrant.

Allowing government officials to access a private person's medical records
without a warrant is a violation of the Fourth amendment to the United
States Constitution, which protects American citizens from warrantless
searches by government officials. The requirement that law enforcement
officials obtain a warrant from a judge before searching private documents
is one of the fundamental protections against abuse of the government's
power to seize an individual's private documents. While the Fourth Amendment
has been interpreted to allow warrantless searches in emergency situations,
it is hard to conceive of a situation where law enforcement officials would
be unable to obtain a warrant before electronic medical records would be
destroyed.

Mr. Speaker, these regulations also require health care providers to give
medical records to the federal government for inclusion in a federal health
care data system. Such a system would contain all citizens' personal health
care information, accessible to anyone who knows the individual's unique
health identifier.  History shows that when the government collects this
type of personal information, the inevitable result is the abuse of
citizens' privacy and liberty by unscrupulous government officials. The only
fail-safe privacy protection is for the government not to collect and store
this type of personal information.

In addition to law enforcement, these so-called privacy protection
regulations create a privileged class of people with a federally-guaranteed
right to see an individual's medical records without the individual's
consent. My medical office recently received a Model "Privacy Act
Compliance" form. This three-page form lists over 20 situations where
medical information may be disclosed without individual consent. Medical
information may be disclosed to attorneys, business associates of the
provider, and federal agencies conducting "health oversight activities."
Medical information may also be divulged without consent to insurance
companies and medical researchers!

Medical researchers claim to be able to protect the autonomy of their
unwilling subjects, but the fact is that allowing third parties to use
medical records for research purposes increases the risk of inadvertent
identification of personal medical information. I am aware of at least one
incident where a man had his identity revealed when his medical records were
used without his consent. As a result, many people in his community
discovered details of his medical history that he wished to keep private!

Forcing individuals to divulge medical information without their consent
also runs afoul of the Fifth amendment's prohibition on taking private
property for public use without just compensation. After all, people do have
a legitimate property interest in their private information. Therefore,
restrictions on an individual's ability to control the dissemination of
their private information represents a massive regulatory taking. The
takings clause is designed to prevent this type of sacrifice of individual
property rights for the "greater good.''

In a free society such as the one envisioned by those who drafted the
Constitution, the federal government should never force a citizen to divulge
personal information to advance "important social goals."  Rather, it should
be up to individuals, not the government, to determine what social goals are
important enough to warrant allowing others access to their personal
property, including their personal information. To the extent these
regulations sacrifice individual rights in the name of a bureaucratically
determined common good, they are incompatible with a free society and a
constitutional government.

As an OB-GYN with more than 30 years experience in private practice, I am
very concerned by the threat to medical practice posed by these privacy
regulations and the unique health identifier scheme. The confidential
physician-patient relationship is the basis of good health care.

Oftentimes, effective treatment depends on the patient's ability to place
absolute trust in his doctor. The legal system has acknowledged the
importance of maintaining physician-patient confidentiality by granting
physicians a privilege not to divulge confidential patient information.

I ask my colleagues to consider how comfortable you would be confiding an
embarrassing physical or emotional problem to your physicians if you knew
that any and all information given your doctor may be placed in a government
database or seen by medical researchers, handed over to government agents
without so much as a simple warrant or accessed by anyone who happens to
know your unique health identifier?

By now it should be clear to every member of Congress that the American
people do not want their health information recorded on a database, and they
do not wish to be assigned a unique health identifier. According to a survey
by the respected Gallup Company, 91 percent of Americans oppose assigning
Americans a unique health care identifier, while 92 percent of the people
oppose allowing government agencies the unrestrained power to view private
medical records and 88 percent of Americans oppose placing private health
care information in a national database. Congress has acknowledge this
public concern by including language forbidding the expenditure of funds to
implement or develop a medical identifier in the federal budget for the past
five fiscal years. Rather than continuing to extend the prohibition on
funding for another year, Congress should finally obey the wishes of the
American people by repealing the authorization of the individual medical ID
this year as well as repealing these dangerous medical privacy rules.

Mr. Speaker, the misnamed medical privacy regulations and the scheme to
assign all Americans a unique health care identifier violates the Fourth and
Fifth amendments by allowing law enforcement officials and government
favored special interests to seize medical records without an individual's
consent or a warrant. Federal supervision of who can access medical records,
combined with a federally-assigned medical ID, facilitate the creation of a
federal database containing the health care data of every American citizen.
These developments could undermine the doctor-patient relationship and thus
worsen the health care of millions of Americans. I, therefore, call on my
colleagues to join me in repealing these threats to privacy and quality
health care by cosponsoring the Patient Privacy Act.



Norman Kirk Singleton
Legislative Director
Congressman Ron Paul
203 Cannon
202-225-2831

"Mankind is so fallen that not man can be trusted with unchecked power over
his fellows."

              C.S. Lewis


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