February 7, 2000
Medical Privacy Threatened
Deadline for Halting Dangerous Regulations Quickly Approaching
An unconstitutional and dangerous rulemaking procedure by the U.S. Department of Health and Human Services is underway and greatly threatens the health care privacy and freedom of Americans. The deadline for concerned citizens to submit comments to HHS is February 17.
On November 3rd, 1999, the Department of Health and Human Services (HHS) published proposed medical privacy regulations in the Federal Register. Protecting medical privacy is a noble goal; however, the federal government is not constitutionally authorized to mandate a uniform standard of privacy protections for every citizen. Rather, individuals and those with whom they entrust their health care information should determine the question of who should have access to a person's medical records. Real threats to privacy come primarily from governments that have historically compelled individuals to provide information, often in exchange for some government benefit.
The HHS regulation would severely reduce individuals' control over their medical records. The regulation, when finalized, will deny, as a matter of federal law, individuals' ability to contract with providers or payors to establish limitations on who should have access to their medical records. Instead, every American will be forced to accept the privacy standard decided upon by Washington-based bureaucrats and politicians, and it is not a good one.
The regulations also give the federal government power to punish those who violate these standards. Thus, in a remarkable example of government paternalism, individuals are forced to rely on the good graces of government bureaucrats for protection of their medical privacy. These so-called "privacy protection" regulations not only strip individuals of any ability to determine for themselves how best to protect their medical privacy, they also create a privileged class of people with a federally-guaranteed right to see an individualís medical records without the individualís consent. For example, medical researchers may access peopleís private medical records even if individuals do not want this.
Forcing individuals and providers to reveal medical records without their consent also runs afoul of the Fifth Amendmentís prohibition on the taking of private property for public use without just compensation. After all, people do have a legitimate property interest in their private records; therefore, restrictions on individuals' ability to control the dissemination of their private information represent a massive taking. The takings clause is designed to prevent this type of sacrifice of individual property rights for the "greater good."
Allowing law enforcement officials to access a private personís medical records without a warrant is a violation of the Fourth Amendment to the United States Constitution. 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 governmentís power to seize an individualís "papers."
Finally, I object to the fact that these proposed regulations "permit" health care providers (already beholden to government by funding) to give medical records to the government for inclusion in a federal health care data system. Such a system would contain all citizensí personal health care information. History shows that when the government collects this type of personal information, the inevitable result is the abuse of citizensí 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.
Before implementing these rules, HHS must consider what will happen to the trust between patients and physicians when patients know that any and all information given their doctor may be placed in a government database, seen by medical researchers, or handed over to government agents without a warrant. For more information on how to submit comments to the Department of Health and Human Services, feel free to contact my congressional staff by email at firstname.lastname@example.org. Please use the words "HHS Regs" in the subject line, and make sure to include your email address in your message. You may also contact my office by phone at 202-225-2831.