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| Physicians Protest Privacy Rule
Loophole |
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(By Amy Snow Landa, AMNews staff. Feb. 11,
2002.
Washington -- A patient is found to have high cholesterol during
a routine check-up at her physician's office. The next week, she receives a
letter saying, "Now that you have high cholesterol, your physician asked us to
tell you about re-evaluating your life insurance."
A teenager is
diagnosed and treated for a sexually transmitted disease. Soon after, he
receives a letter saying a certain brand of ointment has been shown to be an
effective treatment for his type of STD.
In both hypothetical cases, a
marketer has used personally identifiable health information to target a
patient for communication about a particular product -- and did so without the
patient's prior authorization.
Physicians and consumer advocates say
this is exactly the type of practice that should be prohibited under the
federal medical records privacy standards, which are intended to safeguard
access to patients' sensitive health information.
"Unfortunately, the
final rule condones and perhaps even encourages a wide array of marketing
activity using what is supposed to be protected health information," said
William J. Hall, MD, president of the American College of Physicians--American
Society of Internal Medicine.
Dr. Hall testified last month before a
subcommittee of the National Committee on Vital Health Statistics, which is
advising the Dept. of Health and Human Services on the privacy rule's
implementation.
The Bush administration said last year that it would
modify certain areas of the final rule, which President Clinton issued just
before he left office. The privacy standards are scheduled to take effect on
April 14, 2003.
The American Medical Association has been actively
advocating changes to the rule based on current AMA policy, which says that
physicians, hospitals and others in the health care system have a duty to keep
patient information private.
The marketing section, in particular, is
one area of the regulation that physician and consumer groups would like to see
tightened. They say that, at the very least, patients should have the
opportunity to allow, prohibit or restrict the disclosure of their personal
health information before it is disclosed to anyone for marketing
purposes.
Instead, the final rule lays out certain conditions under
which a health care entity or third party may use or disclose a patient's
personally identifiable health information for marketing purposes without first
obtaining the patient's authorization.
Exceptions "swallow the rule"
The marketing provisions provide several exemptions that
essentially "swallow the rule" requiring patients' prior consent for the use or
disclosure of their personal health information, several witnesses told the
privacy panel.
For example, marketing communications that occur in a
"face-to-face" encounter with a patient or over the telephone are exempt.
This means that a patient who has just been discharged after a major
hospital stay could be visited by a door-to-door salesperson or called by a
telemarketer when they are convalescing at home, said Dr. Hall. Under this
exemption, the patient's private health information could be used to promote
not just medical items and services, but vacations, magazines and other
products that aren't related to health care.
Another exemption applies
to marketing communications that promote items or services of "nominal value"
-- whether they are health-related or not. For marketing communications that
are not face-to-face -- a letter, for example -- and that concern a product of
greater than nominal value, the rule allows the use or disclosure of a
patient's private health information to promote health-related products and
services under three conditions. They are:
The marketing
communication identifies the health care entity from which the patient was
identified.
It states whether the health care entity has
received or will receive payment related to the communication.
It informs the patient that he or she can "opt out" of receiving
future communications.
None of these requirements make the
exemption acceptable, said Dr. Hall. Instead, they just add more problems for
patients and physicians.
For example, requiring that the marketing
communication identify the health care entity "throws the physician into the
middle of a sale between the third party and the patient," he said. Dr. Hall
cited the hypothetical example of the patient with high cholesterol who
received the letter saying her physician asked the marketer to tell her about a
life insurance product.
"In addition to the intrusiveness on a rather
personal issue, it also gives the patient the impression that the product being
offered is endorsed and/or approved by the physician," he said.
Requiring that the communication inform the patient that they can opt
out of receiving future communications is "too little, too late," said Dr.
Hall, because it does not allow the patient to opt out before their personal
health information has been disclosed.
Furthermore, the final rule
leaves it up to the patient to figure out how to stop a marketer from
contacting them in the future, said Jeffrey Janofsky, MD, who testified at the
hearing on behalf of the American Psychiatric Assn.
The final rule does
not offer details on what procedures the patient would have to follow to
successfully opt out. It requires only that the marketer make "reasonable
efforts" to ensure that the patient does not receive future communications.
"Why are you putting the burden on the patient?" Dr. Janofsky said to
the panel. "Why shouldn't the burden be on the marketer?"
Both Dr. Hall
and Dr. Janofsky stated unequivocally that their associations oppose allowing
the use or disclosure of personal health information for marketing purposes
without prior authorization.
But the Direct Marketing Assn., whose
5,000 member companies are involved in direct and "interactive" marketing
sales, presented testimony that the final rule has "struck the right balance
between protecting consumers' health-related information and preserving their
right to receive the benefits of marketing."
Having received public
testimony on the marketing issue, the health statistics committee will meet in
February to consider recommending modifications of the rule to HHS Secretary
Tommy Thompson. |
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