Privacy legislation suffers Congressional setback
June 7, 1999 2 minutes read
Privacy legislation suffers Congressional setback
Congress’ optimism over the possibility of passing medical records privacy legislation before its self-imposed August 21 deadline may be waning as differences among the competing players become more entrenched. Indeed, a patchwork bill containing language from three competing medical records privacy bills has garnered little support from anyone on Capitol Hill.
Because of legislators’ tepid response to the compromise bill, a mark-up scheduled for May 25 has been pushed back to June 9, at which time the competing stakeholders are expected to battle over additional changes. According to the Health Insurance Portability and Accountability Act of 1996, if Congress doesn’t pass a bill by August 21, then the Department of Health and Human Services will be charged with coming up with regulations of its own by Feb. 21, 2000.
The compromise bill, S. 578, combines elements of bills sponsored by Senators James Jeffords (D-VT), Robert Bennett (R-UT), and Patrick Leahy (D-VT) and includes some original language of its own. Some of the sticking points over S. 578 (which retains the number of Sen. Jeffords’ bill) include private right of action, preemption of state privacy laws, research, and law enforcement, says Pat Smith, director of government affairs at the Medical Group Management Association in Washington, DC.
With regard to preemption, S. 578 would only supersede state privacy laws enacted after the federal laws take effect. Any state laws currently on the books wouldn’t be affected.
Also under the compromise bill, law enforcement officials can get protected health information through any of the following means:
an administrative, judicial, or grand jury subpoena;an administrative summons;
a civil investigative demand pursuant to federal or state law;
a warrant issued on a showing of probable cause;
a law requiring the reporting of information to law enforcement officials;
a request authorized under federal or state law for the conduct of lawful intelligence activities;
a request made in connection with providing protective services to the president.
While supporters of the Leahy bill argue that those provisions make it far too easy for law enforcement to gain access to medical records, Smith claims that the bill "would protect the confidentiality of medical information without impeding law enforcement’s ability to effectively perform their job."
But Sen. Edward Kennedy (D-MA), co-sponsor of the Leahy bill, already is pushing for language that would tighten restrictions on law enforcement access to medical records. "The current draft still allows law enforcement to use tools that don’t require judicial oversight, such as an administrative subpoena," says Kennedy aide Jim Manley. "And there are no limitations on the use of the information that is gathered."
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