IP: U.S. medical privacy regulations may be postponed indefinitely

[David Farber <dave () farber net>]

> From: "Peter Swire" <swire.1 () osu edu>
> To: <declan () well com>
> Subject: Medical privacy rules may be postponed indefinitely
> Date: Sun, 25 Feb 2001 12:40:22 -0500
>
> Declan:
>
>         Here is an item that may be of interest (or concern) to your list. On
> Friday, the Bush Administration announced that it will ask for a new round
> of comments on the medical privacy rule that was issued in December.  Due to
> a regrettable and recently announced mistake by HHS in not sending paperwork
> to Congress, the rule does not become "effective" until April 14, with
> compliance scheduled for early 2003.  The new announcement states that
> comments can be filed until April 14, with the apparent intention of
> postponing and rewriting the rule.
>
>         This action raises the serious possibility that the medical 
> privacy rules will be postponed indefinitely.  Here are some preliminary 
> comments:
>
>         (1) Today there are no federal rules to protect the 
> confidentiality of
> medical records.  The rules announced in December, which would expect
> compliance in early 2003, would be the first federal rules on the subject,
> and would provide a baseline of significant privacy protection for medical
> records.  To the extent the new Administration wishes to make changes in the
> rule, it has ample opportunity to do so.  Such changes, though, should be
> done from a baseline of good privacy protection and not a baseline of no
> privacy protection.
>
>         (2) There were over 52,000 comments on the proposed rules issued 
> in 1999.
> It took a team of 70 people from over a dozen agencies to respond to the
> comments as required by the Administrative Procedure Act and draft the final
> rule. The rule took an enormous effort even when it was a priority of the
> President, the White House staff, and HHS.  Responding to a new flood of
> comments, and determining the new Administration's position on each issue in
> the rule, would likely take a very long time and quite possibly would never
> be completed.
>
>         (3) A better course of action is to allow the final rule to enter 
> into
> effect on April 14.  The new Administration can then consider the new
> comments.  It can make changes it believes are lawful and appropriate in
> plenty of time for compliance by early 2003.  The choice is between staying
> on track to protecting the privacy of Americans' health records or else
> derailing those protections indefinitely.
>
>         (4) For cyberspace policy, one should remember that a key reason 
> for the
> medical privacy rules was to respond to the computerization of health
> records, and the flow of such records through networks as required by the
> 1996 HIPAA law.  There is consensus that medical records deserve protection,
> including statements by President Bush during the campaign that that he
> would "guarantee the privacy of medical and sensitive financial records."
> Postponing the medical rules indefinitely would go against this campaign
> statement.  It would also likely inject the medical privacy issue into the
> debate on Internet privacy that is shaping up in Congress.
>
> Prof. Peter P. Swire
> Ohio State University College of Law
> (Chief Counselor for Privacy, U.S. Office of Management and Budget,
> 1999-2001)
> cell: (301) 213-9587
> swire.1 () osu edu
> www.osu.edu/units/law/swire.htm



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