Assault on Medical Privacy Hidden in Spending Bill

The ultimate goal of the Obama program is “the utilization of a certified electronic health record for each person in the United States by 2014,” as the stimulus bill stated. But having a massive electronic database will make it far easier for the government to coerce both doctors and patients. This is a peril as bad or worse than the Patriot Act. Now less than 20 percent of the nation’s physicians have gone full speed on computerization. Mr. Obama’s plan offers grants of between $40,000 and $65,000 to doctors’ offices that computerize patient records, and up to $1 million per hospital. But if health records are digitized on the federal dime, it will be far easier for politicians to claim the resulting information. While the Obama administration is showing the smiley face now, its plan calls for federal penalties for doctors who have not computerized their records by the year 2014. One goal for the new federally subsidized computerization is creation of systems able “to exchange electronic health information with, and integrate such information from other sources.” This is a huge step toward a national database. Team Obama and its congressional supporters promise the government will scrupulously respect the privacy of the newly-computerized private medical data. This is reminiscent of President George W. Bush’s 2004 false promise that no American was being wiretapped without a warrant. The feds have an appalling record for protecting the confidentiality of veterans’ health care records. The issue is not whether the personal health information government commandeers will be abused. Instead, it is simply a question of when, where and how it will be exploited. Medical data do not simply track how many times a person went to his doctor seeking a cure for a runny nose or stubbed toe. Medical records could include details on long-ago abortions, impotence or sexually transmitted diseases, anti-depressants and details of breakdowns, or HIV-positive status. Access to personal mental health records makes it easier to exploit someone’s vulnerabilities. Psychologists were brought to Guantanamo to exploit the weaknesses of detainees for interrogations. The same peril could face the millions of Americans who received psychological treatment if their records are fed into centralized databases. When a policeman pulls you over for a speeding ticket, he could quickly access a database with your health records – including any therapy. Even before he walked up to your car window and demanded your identification, he would know if you had a “problem with authority.” What if the Internal Revenue Service agent who audits you knows all your secret fears, as disclosed to a therapist years ago? Would you trust the government to play fair in such a situation? Yet politicians tell us not to worry. Actually, privacy is very lucrative for congressmen: They reap millions of dollars when they betray it. Rep. Roy Blunt, Missouri Republican, and Sen. Tom Harkin, Iowa Democrat, each received more than a million dollars in contributions from health professionals and the pharmaceutical industry since 2000, and each sponsored industry-favored amendments in the stimulus bill that would undermine patient privacy, The Washington Post reported. Campaign contributions will ultimately determine how centralized health data are used. The perils of a database on 300 million Americans’ health records must be seen in light of the other data the federal government has already gathered. The Pentagon’s pursuit of Total Information Awareness on the American people – combined with Congress’ contempt for assuring that federal agencies obey the law – illustrates why surveillance horrors have only begun. The Obama mandate is guaranteed to further subjugate doctors and patients to politicians and bureaucrats. Citizens will be stuck with the huge bills for creating their own digital fetters. But destroying real privacy for a bogus promise of health care is a fool’s bargain.

PATIENT PRIVACY ACT ______ HON. RON PAUL of Texas in the House of Representatives Wednesday, April 9, 2003 Mr. PAUL. Mr. Speaker, I rise to introduce the Patient Privacy Act. This bill repeals the misnamed Medical Privacy regulation, which goes 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 as much of health care 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 citizens' record simply by entering the patient's 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 protect an individual 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. Certain 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 individuals' ability to determine who has access to their 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 record 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 runs 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 the 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 or her 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 acknowledged 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 5 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 repeal 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 also 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.