Updated
Feb 05, 2002 at 04:32 AM by canoehead
GOVERNMENT & MEDICINE
Physicians protest privacy rule loophole
New standards would allow use and disclosure of health information for certain marketing purposes without a patient's consent.
By Amy Snow Landa, AMNews staff. Feb. 11, 2002.
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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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Copyright 2002 American Medical Association. All rights reserved.
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Absolutely incredible! More junk mail and to a vulnerable population. Maybe they'll be giving out the names of the terminally ill to sell gravestones and plots.
patient privacy (except to make money..)
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