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A last-minute addition to the sweeping Financial Services Bill (HR 10), passed last week in the House of Representatives, could further slow the momentum for passing comprehensive medical records privacy legislation and even prevent the Department of Health and Human Services from issuing regulations on the matter, critics say.
The Financial Services Bill, different versions of which have now passed in both the House and Senate, would allow insurance companies to exist as part of an operating entity that includes banking and securities firms. The medical privacy provision, introduced in the Commerce Committee by Rep. Greg Ganske (R-IA) is, proponents say, merely an attempt to prohibit such entities from disclosing patients’ medical information without their consent.
Barbara Levering, Ganske’s press secretary, says the provision’s opponents fundamentally misunderstand its intent. "Some people say that it would prevent passage of comprehensive medical privacy legislation, but that is total poppycock. It’s only germaine to HR 10 and doesn’t cover a lot."
In a letter to other members of Congress, Ganske stressed that the provision would not:
- Pre-empt state privacy laws or obstruct future state privacy laws;
- Satisfy the requirements for comprehensive medical privacy legislation under the Health Insurance Portability and Accountability Act of 1996 (HIPAA);
- Block the Secretary of HHS from promulgating regulations on health information privacy;
- Create a disincentive for comprehensive medical privacy legislation.
But a top aide to Sen. Patrick Leahy (D-VT) disputes virtually all of those statements, claiming the provision represents an attempt to indefinitely stall any type of legitimate, comprehensive privacy legislation. That’s because of one thing Ganske admits the provision will do: It will "cease to be effective on or after the date on which legislation is enacted that satisfies the [HIPAA] requirements."
That means that the provision essentially will serve as stopgap privacy legislation, effectively scrapping the Aug. 21 deadline dictated by HIPAA, opponents argue. With the deadline out of play, HHS would be prevented from drafting medical privacy regulations. "The provision doesn’t say it will sunset when regulations are passed, or when the HIPAA requirements [for a privacy bill] are satisfied," says Leahy’s aide. "It says it will sunset when legislation is enacted, and that is how it vitiates the deadline."
The provision has other problems as well, Leahy’s office argues. While it restricts insurance companies from releasing medical information without the patient’s consent, once the information’s gotten out, the provision doesn’t place any restrictions on how it’s subsequently used. "Once it’s released for one purpose, there’s nothing that would bar it from being released for any other purpose whatsoever," Leahy’s aide says. "It essentially allows unfettered redisclosure of health information." The bill also includes numerous exceptions to disclosure without patient consent, including cases in which information is requested by law enforcement officials.
The privacy provision is contained only in the House version of the Financial Services Bill. The version approved by the Senate contains no such language. Now it’s up to a conference committee to hammer out differences in the bill, a process likely to extend well beyond the Aug. 21 deadline, given the complexity of the overall bill. Leahy already has vowed to fight to strip the privacy provision in conference.
Given the current impasse in formulating comprehensive privacy legislation, some in Congress have floated the idea of approving an extension of the Aug. 21 HIPAA deadline but Leahy and his Democratic colleagues are fighting that as well, having already sent a letter to President Clinton formally requesting that he veto any such extension. Their argument is that if HHS is forced to formulate regulations without benefit of a law, "at least there would be something out there that would be broad based to provide consumer protections," the aide says. "Congress can still continue its current movement on getting legislation passed. The deadline doesn’t stop Congress from acting."