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Health Freedom Watch
September 2005

Contents:


President's Message: How Would Washingtonians Want to Be Treated?
By Sue Blevins

Several reporters have called asking for comments on the government's push for a national electronic medical-records database in response to Hurricane Katrina.  I told the Washington Post that "many things are done during a crisis that society normally would not accept."  On September 14 the paper reported that "The federal government is making medical information on Hurricane Katrina evacuees available online to doctors, the first time private records from various pharmacies and other health care providers have been compiled into centralized databases." 

 

The crisis and reporters' questions made me think:  What would the government have done if the tragedy had occurred in Washington, D.C.?  Would Bill Frist's and Hillary Clinton's medical records have been made electronically and instantly available to health-care providers and government and law-enforcement officials across the country without their consent?  Would the personal health information of Capitol Hill staffers have become accessible to thousands of others without their permission?  How long would their personal data be stored in the centralized databases? 

 

These questions are important for all of us to consider.  And just as the tragic Terri Schiavo case made Americans think about and define their preferences regarding end-of-life matters, the Katrina crisis may push Americans to think about and plan for how much information they want available and to how many others during an individual or national emergency.

 

It's hard to say how Washingtonians would want to be treated.  But one thing I'm certain of: there are many thousands, if not millions, of different opinions when it comes to privacy, and the federal government can't make the right choice for everyone.  That is why individuals' preferences should be upheld to the utmost degree possible-even during a national emergency.

 

Source: "Health Records of Evacuees Go Online," Washington Post, September 14, 2005.

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Government and Industry Groups Increase Push for Electronic Medical Records

On September 13 the U.S. Department of Health and Human Services (HHS) announced appointments to a new federal committee to help speed up the development of a national electronic medical-records system of interoperable databases.  The recently established 17-member American Health Information Community consists largely of government and industry representatives with strong interests in data collection, such as health insurers.  Their goal is to advance President Bush's call for electronic health records within ten years.

A critical issue that must be addressed is:  Do Americans have a right to privacy?  If so, how would a national system of electronic medical records affect that right?  It's clear that under the existing federal medical-privacy rule, creating a national database or linking electronic medical-records databases could be a recipe for breaches of confidentiality.  That's because, as the Institute for Health Freedom has stressed over and over, the rule eliminates the freedom to decide who has access to one's health information in most circumstances.

 

Additionally, there are serious concerns regarding the potential conflicts of interests in the medical-privacy arena.  For example, the New American reported on September 5 that former HHS Secretary Tommy Thompson recently joined Applied Digital, a Florida company that owns VeriChip.  The article points out that Verichip is "the company that specializes in making implantable radio frequency identification chips (RFID) for both people and pets."  The article further cites The Business (a London-based publication) report that Thompson "is putting the final touches to a plan that could result in US citizens having [an RFID] chip inserted under their skin."  The New American also notes, "According to The Business report, 'the RFID capsules would be linked to a computerized database being created by [HHS] to store and manage the nation's health records.'"

 

It is important to note that the privacy rule was modified to eliminate patient consent while Thompson was HHS secretary.  Americans must continue to monitor closely the intended and unintended consequences of health-care reforms.  Eliminating the precious ethic of consent is hardly an improvement. 

 

Sources:

  • Office of the National Coordinator for Health Information Technology (ONCHIT), American Health Information Community Press Release, September 13, 2005.
  • "Electronic Medical-records Plan Raises Fears: Privacy Advocates Missing from Feds' Recommendation Panel," World Net Daily, September 17, 2005.
  • "The New Healthcare System," New American, September 5, 2005.
  • "'Health Chips' Could Help Patients in US," The Business (London), July 31, 2005.

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Prescription for Privacy Invasions

State governments nationwide soon plan to track electronically Americans' use of commonly prescribed medications for pain, anxiety, attention-deficit disorder and sleep disorders.

 

On August 11, President Bush signed into law the National All Schedules Prescription Electronic Reporting Act of 2005. It authorizes 60 million taxpayer dollars over five years to establish electronic prescription drug surveillance programs in all 50 states and the District of Columbia. It requires those dispensing controlled substances (such as pharmacists and physicians) to submit information to state governments within one week of filling prescriptions, including patients' names, addresses and telephone numbers. Data also will be collected on animal owners whose pets are prescribed controlled substances by veterinarians.

 

Congress's stated purpose of the law is to help physicians identify and treat prescription drug addiction and abuse. (According to the National Institute on Drug Abuse, 2.7 percent of the population age 12 and older use prescription drugs for non-medical purposes.) However, the legislation goes much further than its announced intent by also allowing local, state and federal law-enforcement agents to use the nationwide electronic prescription drug data.

 

How will the new law affect patients and doctors? How will it affect individuals' health privacy? What can citizens do to prevent invasions of their medical privacy?

 

Government prescription drug monitoring programs could foster mistrust between patients and physicians. Patients logically would be less likely to trust doctors who are required by law to submit information to states. Also, individuals whose pain needs are not being met and who choose to shop around for better pain-management services could be viewed suspiciously by state governments, or wrongly labeled as addicts or criminals. Some may turn to illegal drugs as an alternative to prescription medications.

 

Under the new tracking systems, physicians could lose autonomy because state agents, rather than individual private physicians, would set medical-prescribing standards. Physicians also could be encouraged to view "doctor shoppers" as potential prescription drug abusers. Yet, in a free society we should be encouraging competition and shopping around for health-care services, like we do in most other areas of our lives.

 

Additionally, the new law will greatly undermine Americans' health privacy because citizens don't have a right to opt out of the state electronic databases. Nor do they have a right to know whether their personal health data are being accessed by many others, including law-enforcement officials.

 

At the same time, the existing misnamed federal medical privacy rule (that was established several years ago) permits states and many others to share patients' personal health information without individuals' consent. Yet, many citizens are not being adequately warned about this. When patients receive the federally mandated notices about their so-called "privacy rights" upon visiting health-care providers or picking up prescriptions, the notices fail to fully inform patients that they do not have the final say in deciding who can access their personal health information. Unfortunately, the federal government has misled Americans into believing that the rule protects their privacy, when it actually facilitates data sharing-without guaranteeing confidentiality.

 

What can citizens do to prevent erosion of their health privacy? They should work at both the federal and state levels to restore the legal right to give or withhold their consent before personal health information is shared with governments and others. Americans also should uphold the right to contract with and maintain truly confidential relationships with the doctors and other health-care providers of their choice.

 

Congress and President Bush may have had good intentions in creating state electronic prescription drug monitoring programs. But the new law could interfere greatly with patient-doctor relationships. All told, it would most likely lead to less physician autonomy and more invasions of health privacy for many citizens nationwide.

 

Note: This article was written by Sue Blevins originally for the Cato Institute and distributed by Knight Ridder/Tribune Information Services.

 

Sources:

  • "National All Schedules Prescription Electronic Reporting Act of 2005." To read the complete law, visit the congressional legislative database (http://thomas.loc.gov) and search for public law number 109-60.
  • "Prescription Pain and Other Medications," National Institute on Drug Abuse, February 2005.
  • Drug Enforcement Administration, Controlled Substances List.

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Health Freedom Watch is published by the Insitute for Health Freedom. Editor: Sue Blevins; Assistant Editor: Deborah Grady. Copyright 2005 Institute for Health Freedom.