Congress is set for showdown over privacy laws
Congress is set for showdown over privacy laws
Department of Justice argues medical records privacy bills will hinder prosecution of health care fraud
Three months from now — one way or another — the health care industry will face new medical records privacy rules. Less certain is how well those rules will protect physicians from the prying eyes of federal investigators.
Currently, three separate bills are competing for votes in the Senate: One sponsored by Patrick Leahy (D-VT) that’s backed by physician groups and the Washington, DC-based American Civil Liberties Union (ACLU); another sponsored by Robert Bennett (R-UT) that’s backed by health plans and the Chicago-based American Health Information Management Association; and a third bill sponsored by Jim Jeffords (R-VT).
Congress must pass one of these bills, or some sort of compromise, by Aug. 21, according to the Health Insurance Portability and Account ability Act (HIPAA) of 1996. If it doesn’t, then the torch gets passed to the Department of Health and Human Services, which will have to come up with final regulations on the matter by February 2000. In fact, Physician’s Compliance Hotline has learned that HHS staffers are already in discussions about what such regulations will likely entail. (See related story, page 2.) If responsibility does fall to HHS, expect proposed regs as soon as this fall.
One of the key issues in the debate over the competing privacy bills is how much to limit law enforcement access to medical records. Of the three bills, only the Leahy bill would require law enforcement officers to obtain a court order ("or its functional equivalent") before gaining access to medical records. And the Leahy bill is also the only one that "sets a sufficiently high legal standard for such court orders," says Ronald Weich, JD, a legislative consultant for the ACLU and a partner in the law firm Zuckerman, Spaeder in Washington, DC. Last week, Weich testified before a Senate committee on the subject of medical records privacy.
"The Bennett bill does not contain a standard by which courts would evaluate whether law enforcement can obtain a warrant to search medical records," Weich says. "Both Bennett and Jeffords would allow law enforcement to obtain records using an administrative subpoena or summons, which isn’t reviewed by a neutral judge. Summonses are simply demand letters issued on law enforcement stationery."
Further, under the Leahy bill, law enforcement agencies would be prohibited from using medical records as part of any centralized law enforcement database.
John Bentivoglio, a health care specialist with the Department of Justice, argues that all three bills place too much of a burden on law enforcement when it comes to investigating Medicare fraud and abuse. DOJ’s position is that the current law is sufficient, and any additional restrictions would only limit investigators’ need to obtain health information in a timely manner.
The main focus of debate on the bills, however, has been whether or not a federal privacy law should effectively pre-empt all existing state privacy laws. Both Bennett and Jeffords would override all such state laws, even when those laws (such as those in Minnesota) are stricter. That approach has won Bennett the backing of many managed care groups, who worry about the recent trend toward state-level managed care legislation. The Leahy bill would not pre-empt existing state laws.
"The issue is flexibility," says David Carle, an advisor to Senator Leahy. "As much as Congress will try to anticipate every future need as technology develops, realistically it’s not in a position to do that. Congress and the state need to have the flexibility to consider future challenges to personal privacy — and states traditionally have been the innovators of steps later adopted at the federal level."
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