Three replies on Big Brother chatting with your doctor [priv]

[Declan McCullagh <declan () well com>]

---

> From: "Peter Swire" <peter () peterswire net>
> To: "'Declan McCullagh'" <declan () well com>
> Subject: RE: [Politech] Big Brother is now talking to your doctor? [priv]
> Date: Tue, 10 Aug 2004 12:26:23 -0400
>
> Hi Declan:
>
>         Given previous debates on your list on medical privacy, I
> thought it might be helpful to explain very briefly how the Pennsylvania
> drivers' license story fits in with the HIPAA privacy rules.
>
>         Put simply, HIPAA does not alter the outcome in Pennsylvania.
> HIPAA says that doctors and hospitals can disclose information as
> "required by law."  The doctor here apparently decided that disclosure
> to Motor Vehicles was "required by law" and did the disclosure.  The
> places to complain would be: (1) the doctor, if the disclosure is not
> actually required; (2) the Pennsylvania legislature, if the law requires
> disclosure of this; and (3) Motor Vehicles, if it cancels a drivers'
> license based on such flimsy evidence.
>
>         The bigger, and related, medical privacy news today is the
> excellent article by Robert Pear on the front page of the NY Times.  The
> Bush Administration plans to require hospitals that receive federal
> funding to ask questions including: "Are you a United States citizen?";
> "Are you a lawful permanent resident, an alien with a valid current
> employment authorization card or other qualified alien?" and others.
> Hospital employees have to certify the answers are true and complete, on
> pain of civil and criminal penalties.
>
>         What undocumented alien, including undocumented parents seeking
> care for their citizen children, would dare go to the hospital in the
> face of these questions?  The Pennsylvania and immigration stories are
> similar because the government is requiring doctors to participate in
> surveillance.
>
>         The risk is obvious and large.  Do we think the next outbreak of
> SARS will politely avoid infecting non-citizens?  Our best defense
> against infectious diseases and bioterrorism is to ensure that sick
> people come into the healthcare system.  The new measures announced in
> the Pear article today increase the risk that people will not get the
> health care they need, putting themselves and the rest of our society at
> greater medical risk.
>
> Peter
>
> Prof. Peter Swire
> Moritz College of Law of the
>     Ohio State University
> John Glenn Scholar in Public Policy Research
> Formerly, Chief Counselor for Privacy in the
>     U.S. Office of Management & Budget
> (240) 994-4142, www.peterswire.net




> From: "Gordon Brandt"
> To: "'Declan McCullagh'" <declan () well com>
> Subject: RE: [Politech] Big Brother is now talking to your doctor? [priv] 
> (Obscure/hide email please)
> Date: Tue, 10 Aug 2004 12:24:50 -0400
>
> Please hide/anti-spam the email please.  Thank you
>
> Declan,
>
> Interesting that I see your article, and then later in the day see this:
>
> http://www.nytimes.com/2004/08/10/politics/10health.html?hp=&pagewanted=prin
> t&position=
> WASHINGTON, Aug. 9 - The federal government is offering $1 billion to
> hospitals that provide emergency care to undocumented immigrants. But to get
> the money, hospitals would have to ask patients about their immigration
> status, a prospect that alarms hospitals and advocates for immigrants.
>
> And last night, on the local news,
> http://www.wgrz.com/news/news_article.aspx?storyid=22280
> Susan Parry is a nurse who's very familiar with the new HIPAA laws about
> medical privacy. That's why she was surpised to find her medical records
> were now at another doctor's office after her doctor retired due to illness.
>
> Susan Parry: "They were transferred to a physician that I don't have
> intentions of going to, without my permission. I work with HIPAA every day.
> I feel like it's an invasion of my privacy. What's more personal than
> medical records?"
>
> This seems to be occuring much more recently, or this is just a strange
> confluence of stories.
>
> Thanks for the great work,
>
> Gordon





> X-WELL-Auth: No
> To: cmauthe () transcard com, declan () well com
> From: Liz Ditz <ponytrax () batnet com>
> Subject: "Big Brother" or appropriate intervention?
> Date: Wed, 11 Aug 2004 15:25:40 -0700
>
> California has had a law on the books since the late 1980s/early 
> 1990s.    How do I know this?  My late mother drove while intoxicated on a 
> regular basis, and we researched what would have to happen to get her 
> license suspended.   In the opposite of the PA story you reported, we 
> could not convince her physician to do the reporting.
>
> Oh, and while we are on this one, what about physicians  refusing to 
> prescribe birth control pills, and pharmacists refusing to fill the 
> prescriptions?
>
> PHYSICAL AND MENTAL CONDITIONS PHYSICIANS ARE REQUIRED TO REPORT
>
> Health and Safety Code Section 103900 requires physicians and surgeons to 
> report patients at least 14 years of age who are diagnosed as having a 
> lapses of consciousness or dementia (mental disorders) conditions or 
> related disorders.
>
> Although not required by law, any other condition may be reported by 
> physicians when they believe a patient cannot drive safely because of a 
> medical condition.
>
> <http://www.dmv.ca.gov/pubs/vctop/appndxa/hlthsaf/hs103900.htm>http://www.dmv.ca.gov/pubs/vctop/appndxa/hlthsaf/hs103900.htm 
>
> 103900.   (a) Every physician and surgeon shall report immediately to the 
> local health officer in writing, the name, date of birth, and address of 
> every patient at least 14 years of age or older whom the physician and 
> surgeon has diagnosed as having a case of a disorder characterized by 
> lapses of consciousness. However, if a physician and surgeon reasonably 
> and in good faith believes that the reporting of a patient will serve the 
> public interest, he or she may report a patient's condition even if it may 
> not be required under the department's definition of disorders 
> characterized by lapses of consciousness pursuant to subdivision (d).
>
> (b) The local health officer shall report in writing to the Department of 
> Motor Vehicles the name, age, and address, of every person reported to it 
> as a case of a disorder characterized by lapses of consciousness.
>
> (c) These reports shall be for the information of the Department of Motor 
> Vehicles in enforcing the Vehicle Code, and shall be kept confidential and 
> used solely for the purpose of determining the eligibility of any person 
> to operate a motor vehicle on the highways of this state.
>
> (d) The department, in cooperation with the Department of Motor Vehicles, 
> shall define disorders characterized by lapses of consciousness based upon 
> existing clinical standards for that definition for purposes of this 
> section and shall include Alzheimer's disease and those related disorders 
> that are severe enough to be likely to impair a person's ability to 
> operate a motor vehicle in the definition. The department, in cooperation 
> with the Department of Motor Vehicles, shall list those circumstances that 
> shall not require reporting pursuant to subdivision (a) because the 
> patient is unable to ever operate a motor vehicle or is otherwise unlikely 
> to represent a danger that requires reporting. The department shall 
> consult with professional medical organizations whose members have 
> specific expertise in the diagnosis and treatment of those disorders in 
> the development of the definition of what constitutes a disorder 
> characterized by lapses of consciousness as well as definitions of 
> functional severity to guide reporting so that diagnosed cases reported 
> pursuant to this section are only those where there is reason to believe 
> that the patients' conditions are likely to impair their ability to 
> operate a motor vehicle. The department shall complete the definition on 
> or before January 1, 1992.
>
> (e) The Department of Motor Vehicles shall, in consultation with the 
> professional medical organizations specified in subdivision (d), develop 
> guidelines designed to enhance the monitoring of patients affected with 
> disorders specified in this section in order to assist with the patients' 
> compliance with restrictions imposed by the Department of Motor Vehicles 
> on the patients' licenses to operate a motor vehicle. The guidelines shall 
> be completed on or before January 1, 1992.
>
> (f) A physician and surgeon who reports a patent diagnosed as a case of a 
> disorder characterized by lapses of consciousness pursuant to this section 
> shall not be civilly or criminally liable to any patient for making any 
> report required or authorized by this section.
>
>
> In addition, California has a way for persons to report anonymously
>
> <http://www.driversed.com/enroll/dmv_book/dmv_health.html>http://www.driversed.com/enroll/dmv_book/dmv_health.html 
>
>
> HOW TO REFER AN UNSAFE DRIVER
>
> If you are concerned for the safety of a family member, friend, or other 
> person who can no longer drive safely, you may write to your local Driver 
> Safety Office or the address given below. The form is also available 
> online. Provide the person’s name, birth date, driver license number and 
> current address, and explain what you observed that led you to believe the 
> person is an unsafe driver. The letter must be signed; however, you may 
> request that your name be kept confidential.
>
> Mail your letter to:
>
> Department of Motor Vehicles
> Driver Safety Actions Unit M/S J234
> P.O. Box 942890
> Sacramento, CA 94290-0001
>
> DMV will contact the person for a reexamination and he or she could be 
> suspended depending on the person’s driving record. A driving test will be 
> given to any person when a:
>         •       Physician reports the person has lapses of consciousness.
>         •       Traffic officer requests a DMV review and the officer 
> believes the driver is incapable of operating a vehicle safely.
>         •       Relative makes a good-faith report to DMV stating the 
> driver cannot safely operate a vehicle.
>
> <http://www.dmv.ca.gov/pubs/brochures/fast_facts/ffdl10.htm>http://www.dmv.ca.gov/pubs/brochures/fast_facts/ffdl10.htm 
>
>
> Unsafe Driver
>
>
> If you know someone who may no longer be able to drive safely, you may 
> request that the Department of Motor Vehicles (DMV) review his or her 
> driving qualifications. This form is provided for your convenience. If you 
> prefer, you may write a letter to your local Driver Safety office to 
> identify the driver you want to report and give your reason(s) for making 
> the report.
>
> Confidentiality
>
> You may ask to keep your name confidential and DMV will make every attempt 
> not to disclose your identity. We understand that reporting someone, 
> especially a patient, relative, or close friend, is a sensitive issue and 
> DMV does not want to harm your relationship with that person. However, we 
> also want to make sure that potentially unsafe drivers are evaluated. All 
> records received by DMV which report a physical or mental condition are 
> confidential and cannot be made public (VC §1808.5). DMV may not be able 
> to keep the report confidential if ordered to release this information by 
> a court.
>
>
> **********
> Liz Ditz
> 650-303-5967
>
> blog: <http://lizditz.typepad.com>http://lizditz.typepad.com
>
> Success: fall down seven times, stand up eight. </blockquote></x-html>

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