PRESS RELEASE
For Immediate Release
July 16, 2001

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Citizens' Council on Health Care
1954 University Ave. W., Suite 8
St. Paul, MN 55104
http://www.cchconline.org
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CONTACT:
Twila Brase, R.N., President
651-646-8935p
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Lawsuit Against HHS and Medical Privacy Rule
is Step in Right Direction


St. Paul, Minnesota--Opposition to the new medical privacy rule and support for privacy rights took a giant leap forward today, says one health care policy organization. A group of physicians and medical societies from South Carolina and Louisiana have filed a lawsuit against Secretary Tommy Thompson, and the U.S. Department of Health and Human Services (HHS), charging that the medical privacy rule, and a portion of the 1996 Health Insurance Portability and Accountability Act (HIPAA) that required writing the rule, violate the U.S. Constitution and are impermissibly vague on federal preemption of state law. Civil Docket No. 3:01-CB-2965 was filed in the United States District Court for the District of South Carolina Columbia Division.

"This lawsuit is the first promising step taken to undo the constitutional damage wrought by the medical privacy rule," says Twila Brase, R.N., President of Citizens' Council on Health Care (CCHC).

CCHC, a strong proponent of medical privacy and patient consent requirements has long expressed its constitutional concerns about the medical privacy rule which was put in effect by the Bush Administration on April 14, 2001 with full implementation required by April 14, 2003 for most health care providers.

"The so-called medical privacy rule violates individual Fourth Amendment rights against search and seizure because it allows government regulators to get their hands on everyone's medical record without patient consent or a search warrant," says Brase. In direct opposition to constitutional protections,HHS officials gave themselves unlimited authority to access all medical records on any day at any hour. Neither a citizen complaint nor a search warrant is required.

In addition, without patient consent, doctors, hospitals, and health plans have been given authority to disclose individually-identifiable medical information to law enforcement officers, medical and public policy researchers, government databases, foreign governments, judges, and a wide array of government agencies for public health purposes and "national priority activities." While they are not required to provide the data, they have permission to do so if they desire.

"The privacy rule took what was considered unethical, illegal or unconstitutional and made it permissible, even profitable." says Brase.

It is ironic, according to Brase, that the very agency that wrote the rule is not required to follow it.

"Governments, including HHS itself, law enforcement, researchers, and any number of permitted recipients of the data are not required to follow what little protections may be found in the rule," she says.

Brase says that data they receive can be shared, disclosed, sold, or transmitted because the only entities covered by the rule are doctors, health care providers, health care facilities, health plans and insurers, and data clearinghouses.

Brase also notes a disconnect between enforcement of the rule and regulatory authority over the many business partners of these "covered entities." While covered entities are required to write privacy protection agreements into their contracts with business partners and have been asked to report known privacy infractions to the HHS, the department has no authority over the practices of business partners because business partners are not covered entities under the rule.

"We hope this constitutional challenge will make the public aware of the fact that not only have they have been deceived into believing their medical records are protected, but they are in serious danger of losing their constitutional and privacy rights if the rule is implemented as written," says Brase.


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Brase was a selected panelist at the National Committee on Vital Statistics' only hearing on the Unique Patient Identifier. For CCHC, she has provided public comments on the various regulations and data standards promulgated under HIPAA.

Citizens' Council on Health Care is a national non-profit health care policy organization located in St. Paul, Minnesota.



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1954 University Ave.W., Suite 8
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651-646-8935 phone
651-646-0100 fax
http://www.cchconline.org
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