HON. RON PAUL OF TEXAS
IN THE HOUSE OF REPRESENTATIVES
April 16, 2003

Repeal the So-Called "Medical Privacy Rule"

Mr. Speaker, I rise to introduce the Patient Privacy Act. This bill repeals the misnamed Medical Privacy regulation, which went into effect on April 14 and actually destroys individual medical privacy. The Patient Privacy Act also repeals those sections of the Health Insurance Portability and Accountability Act of 1996 authorizing the establishment of a “standard unique health care identifier” for all Americans, as well as prohibiting the use of federal funds to develop or implement a database containing personal health information. Both of these threats to medical freedom grew out of the Clinton-era craze to nationalize health care as much as politically possible.

Establishment of a uniform medical identifier would allow federal bureaucrats to track every citizen's medical history from cradle to grave. Furthermore, as explained in more detail below, it is possible that every medical professional, hospital, and Health Maintenance Organization (HMO) in the country would be able to access an individual citizen’s records simply by entering an identifier into a health care database.

The dangers to liberty inherent in the “uniform health identifier” are magnified by the so-called “medical privacy” regulation. Many things in Washington are misnamed, however, this regulation may be the most blatant case of false advertising I have come across in all my years in Congress. Rather than protecting the individual’s right to medical privacy, these regulations empower government officials to determine how much medical privacy an individual "needs.'' This one-size-fits-all approach ignores the fact that different people may prefer different levels of privacy. Some individuals may be willing to exchange a great deal of their personal medical information in order to obtain certain benefits, such as lower-priced care or having information targeted to their medical needs sent to them in a timely manner. Others may forgo those benefits in order to limit the number of people who have access to their medical history. Federal bureaucrats cannot possibly know, much less meet, the optimal level of privacy for each individual. In contrast, the free market allows individuals to obtain the level of privacy protection they desire.

The so-called medical privacy regulations and uniform health identifier scheme not only reduce an individual’s ability to determine who has access to his personal medical information, but actually threaten medical privacy and constitutionally-protected liberties. For example, these regulations allow law enforcement and other government officials access to a citizen's private medical records without having to obtain a search warrant.

Allowing government officials to access a private person's medical records without a warrant is a violation of the Fourth amendment to the United States Constitution, which protects American citizens from warrantless searches by government officials. 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 government's power to seize an individual's private documents. While the Fourth Amendment has been interpreted to allow warrantless searches in emergency situations, it is hard to conceive of a situation where law enforcement officials would be unable to obtain a warrant before electronic medical records would be destroyed.

Mr. Speaker, these regulations also require health care providers to give medical records to the federal government for inclusion in a federal health care data system. Such a system would contain all citizens' personal health care information, accessible to anyone who knows the individual’s unique health identifier.  History shows that when the government collects this type of personal information, the inevitable result is the abuse of citizens' 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.

In addition to law enforcement, these so-called privacy protection regulations create a privileged class of people with a federally-guaranteed right to see an individual's medical records without the individual's consent. My medical office recently received a Model “Privacy Act Compliance” form. This three-page form lists over 20 situations where medical information may be disclosed without individual consent. Medical information may be disclosed to attorneys, business associates of the provider, and federal agencies conducting “health oversight activities.” Medical information may also be divulged without consent to insurance companies and medical researchers!

Medical researchers claim to be able to protect the autonomy of their unwilling subjects, but the fact is that allowing third parties to use medical records for research purposes increases the risk of inadvertent identification of personal medical information. I am aware of at least one incident where a man had his identity revealed when his medical records were used without his consent. As a result, many people in his community discovered details of his medical history that he wished to keep private!

Forcing individuals to divulge medical information without their consent also runs afoul of the Fifth amendment's prohibition on taking private property for public use without just compensation. After all, people do have a legitimate property interest in their private information. Therefore, restrictions on an individual's ability to control the dissemination of their private information represents a massive regulatory taking. The takings clause is designed to prevent this type of sacrifice of individual property rights for the “greater good.''

In a free society such as the one envisioned by those who drafted the Constitution, the federal government should never force a citizen to divulge personal information to advance “important social goals.”  Rather, it should be up to individuals, not the government, to determine what social goals are important enough to warrant allowing others access to their personal property, including their personal information. To the extent these regulations sacrifice individual rights in the name of a bureaucratically determined common good, they are incompatible with a free society and a constitutional government.

As an OB-GYN with more than 30 years experience in private practice, I am very concerned by the threat to medical practice posed by these privacy regulations and the unique health identifier scheme. The confidential physician-patient relationship is the basis of good health care.

Oftentimes, effective treatment depends on the patient's ability to place absolute trust in his doctor. The legal system has acknowledged the importance of maintaining physician-patient confidentiality by granting physicians a privilege not to divulge confidential patient information.

I ask my colleagues to consider how comfortable you would be confiding an embarrassing physical or emotional problem to your physicians if you knew that any and all information given your doctor may be placed in a government database or seen by medical researchers, handed over to government agents without so much as a simple warrant or accessed by anyone who happens to know your unique health identifier?

By now it should be clear to every member of Congress that the American people do not want their health information recorded on a database, and they do not wish to be assigned a unique health identifier. According to a survey by the respected Gallup Company, 91 percent of Americans oppose assigning Americans a unique health care identifier, while 92 percent of the people oppose allowing government agencies the unrestrained power to view private medical records and 88 percent of Americans oppose placing private health care information in a national database. Congress has acknowledge this public concern by including language forbidding the expenditure of funds to implement or develop a medical identifier in the federal budget for the past five fiscal years. Rather than continuing to extend the prohibition on funding for another year, Congress should finally obey the wishes of the American people by repealing the authorization of the individual medical ID this year as well as repealing these dangerous medical privacy rules.

Mr. Speaker, the misnamed medical privacy regulations and the scheme to assign all Americans a unique health care identifier violates the Fourth and Fifth amendments by allowing law enforcement officials and government favored special interests to seize medical records without an individual's consent or a warrant. Federal supervision of who can access medical records, combined with a federally-assigned medical ID, facilitate the creation of a federal database containing the health care data of every American citizen. These developments could undermine the doctor-patient relationship and thus worsen the health care of millions of Americans. I, therefore, call on my colleagues to join me in repealing these threats to privacy and quality health care by cosponsoring the Patient Privacy Act.