Citizens’ Council on Health Care
CCHC HEALTH eNEWS
Friday, November 2, 2001


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Providing news and commentary on health care policy,
health insurance issues, and medical confidentiality.
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* GROUPS WANT PATIENT CONSENT REQUIREMENTS RESCINDED

 IMPOVERISHED SMOKERS CHOOSE TOBACCO OVER FOOD

* NEW ANTI-TERRORISM LAW EXPANDS SURVEILLANCE/POLICE POWER

* FBI ASKING FOR MEDICAL RECORDS IN TERRORIST INVESTIGATION

* SUPREME CT: MEDICARE LAWSUIT AGAINST HMOs ALLOWED TO PROCEED

* PATIENT SAFETY UNDER THE SCOPE AT U.S. HEALTH DEPT.

* WORRY ABOUT DATABASES, NOT NATIONAL ID CARDS

 BAILOUTS: AIRLINES FIRST; HOSPITALS NEXT?

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* CCHC Commentary included
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CCHC COMMENTARY:
GROUPS WANT PATIENT CONSENT REQUIREMENTS RESCINDED

A group of more than two dozen health care and employer
organizations, including the U.S. Chamber of Commerce, the
Health Insurance Association of America, and the Healthcare
Leadership Council (a coalition of health care organization
chief executives) have urged HHS Secretary Tommy Thompson to
issue a new rule that permits them to disregard patient consent
requirements in the federal medical privacy rule.

”Covered entities should be able to use and disclose personally
identifiable health information for treatment, payment and health
care operations without obtaining prior consent” the groups wrote,
according the the BNA’s Health Care Policy Report (10/29/01). In
addition, the groups want the rule specifically to allow medical
research without consent, and to mandate state law compliance with
the federal rule. Current federal law, and the privacy rule, allow
states to pass laws that are more protective of patient privacy than
the rule.

It is worth mentioning that the rule is NOT protective of patient
privacy, but gives doctors, health plans, clinics, hospitals and
data clearinghouses federal authority to release patient data for
at least ten broad categories of activities—including medical
research, law enforcement, government health care databases—without
patient consent. And although it requires patient consent for
treatment, payment, and health care operations, it allows insurance
and care to be denied for lack of patient consent.

So that eNEWS readers understand the implications of the request,
here are the list of activities in the privacy rule under the
headings of Treatment, Payment and Health care operations:

TREATMENT

”Treatment means the provision, coordination, or management of
health care and related services by one or more health care
providers, including the coordination or management of health
care by a health care provider with a third party; consultation
between health care providers relating to a patient; or the
referral of a patient for health care from one health care
provider to another.”

PAYMENT:

-activities undertaken to obtain premiums or to determine or fulfill
responsibility for coverage and provision of benefits
- activities undertaken to obtain or provide reimbursement
- Determination of eligibility or coverage
- Risk adjusting amounts based on enrollee health status and
demographics
- Billing, claims management, collection activities,
- obtaining payment under a contract for reinsurance
- health care data processing
- medical necessity determinations
- Utilization review activities, including precertification and
preauthorization of
- retrospective review of services;
- disclosure to consumer reporting agencies relating to collection
of premiums
- disclosure of Name and address; Date of birth, Social Security
Number, Payment history, Account number; and Name and address of
the health care provider/plan

HEALTH CARE OPERATIONS

”Health care operations means any of the following activities of the
covered entity to the extent that the activities are related to
covered functions, and any of the following activities of an
organized health care arrangement in which the covered entity
participates”:

- conducting quality assessment and improvement activities
- outcomes evaluation and development of clinical guidelines
- population-based activities relating to improving health or
reducing health care costs
- protocol development, case management and care coordination
- contacting of health care providers and patients with information
about treatment alternatives (marketing)
- related functions that do not include treatment
- reviewing the competence or qualifications of health care
professionals
- evaluating practitioner and provider performance
- conducting training programs in which students, trainees, or
practitioners in areas of health care learn under supervision
to practice or improve their skills as health care providers,
- training of non-health care professionals
- accreditation, certification, licensing, or credentialing
activities;
- Underwriting, premium rating
- other activities relating to the creation, renewal or replacement
of a contract of health insurance or health benefits
- other activities relating to ceding, securing, or placing a contract
for reinsurance of risk relating to claims for health care
(including stop-loss insurance and excess of loss insurance)
- conducting or arranging for medical review
- legal services, and auditing function
- fraud and abuse detection and compliance programs
- business planning and development
- conducting cost-management and planning-related analyses related
to managing and operating the entity
- drug formulary development and administration
- development or improvement of methods of payment or coverage
policies
- business management and general administrative activities
- activities related to implementation of and compliance with the
privacy rule
- customer service
- provision of data analyses for policy holders, plan sponsors, or
other customers, provided that protected health information is not
disclosed to such policy holder, plan sponsor, or customer.
- Resolution of internal grievances;
- sale or transfer of assets to a potential successor in interest, if
the potential successor in interest is a covered entity or,
following completion of the sale or transfer, will become a covered
entity; and
- creating deidentified health information for medical research
- fundraising for the benefit of the covered entity
- marketing for which consent is not required

Sources: Healthcare Leadership Council release, 10/24;
California Healthline; BNA’s Health Care policy Report (10/29/01)
and CCHC’s “Important Definitions: The Federal Medical Privacy Rule: http://www.cchc-mn.org/definitions.php3#pay.

-Citizens’ Council on Health Care
-November 11, 2001


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IMPOVERISHED SMOKERS CHOOSE TOBACCO OVER FOOD

In Bangladesh, despite abject poverty, many men who earn
as little as $24 a month spend a portion of their income on
tobacco products, forgoing food, clothing and housing for
themselves and their families, investigators found.

According to a report by Debra Efroymson of PATH Canada, in the
October issue of the journal Tobacco Control:

o In Dhaka, Bangladesh, an estimated 10.5 million people
currently malnourished could have an adequate diet if
money spent on tobacco were spent on food instead.

o Average male cigarette smokers there spend more than twice
as much on cigarettes as per capita expenditure on
clothing, housing, health and education combined.

o Furthermore, tobacco use was higher among those with lower
incomes; among those with a household income below $24 a
month, 58.2 percent of men smoked, compared with 32.3
percent of those whose household incomes were higher than
$118 per month.

Overall, rates of smoking in the country are high, and women’s
smoking rates are much lower than men.

Source: Debra Efroymson, “Hungry for tobacco: an analysis of the
economic impact of tobacco consumption on the poor in
Bangladesh,” Tobacco Control, October 2001; “Poorest spend scarce
funds on tobacco, not food,” Reuters Health, October 11, 2001.

For study text
http://tc.bmjjournals.com/cgi/content/full/10/3/212

Source: Taken directly from Daily Policy Digest, National Center
for Policy Analysis, October 2001.


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INCREASED POLICE SURVEILLANCE/POWER PASSED INTO LAW

The anti-terrorism bill that passed Congress and was sent to
President Bush for his signature continues to have serious privacy
and autonomy concerns. Although a “sunset” provision will require
much of the law enforcement powers to end in 2005, the December
2005 expiration date applies to only a small portion of the bill.

Internet surveillance without a court order in some circumstances,
secret searches of home when the owner is away, and confidential
sharing of grand jury data with the CIA will be permitted forever.
In addition investigations in progress before December 2005 will
be exempt.

The USA Act passed the Senate 98 - 1 with Russ Feingold voting in
opposition. He said that the bill “does not strike the right balance
between empowering law enforcement and protecting constitutional
freedoms.” The House passed the bill 367 - 66.

Other provisions of the bill include 20 years prison for intent
to defraud by downloading foreign currancy notes, long detentions
in jail for non-citizens suspected of terrorism, biometric identifiers
on visas of foreigners (digital ID cards), a new crime called
cyberterrorism for hackers costing at least $5,000 in damage per year, submission of credit data to FBI without a search warrant (current
law requires this only in espionage cases), submission of telephone
calling history to the FBI without a search warrant and requiring that
the customer not be notified, and new computer forensics labs to
inspect data.

Source: “Terror Act Has Lasting Effects.” Declan McCullagh
WIRED News http://www.wired.com/news/print/0,1294,47901,00.html

-Citizens’ Council on Health Care
-November 11, 2001


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HIPAA NOT AFFECTING DOJ REQUESTS FOR PATIENT DATA

Privacy issues have generated further interest from
healthcare executives as the Justice Dept. (DOJ) seeks patient
rosters from organizations as part of its antiterrorism
campaign and efforts to locate suspects, according to industry
officials. Some managers are looking for guidance on how to
deal with the requests, according to Liz Johnson, HealthLink’s
executive vice president.

Executives looking to the HIPAA privacy rule will receive
little help, according to Johnson and HHS officials, who explained
that the privacy rule does not take effect until April 2003.

Healthcare attorney Bruce Fried observed HIPAA would not apply
in any event and covered entities could share the information
without fear of liability if presented with a bona fide subpoena
from federal authorities.

Source: Taken Directly from:
PRIVACYSECURITYNETWORK, October 29, 2001


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MEDICARE LAWSUITS AGAINST HMOs ALLOWED TO PROCEED

Barbara McCall can go forward with her lawsuit against
PacifiCare.The U.S. Supreme Court allowed the California
Supreme Courts decision to stand. Patients can sue their
HMO even if the plans have administrative review processes
to hear appeals to medical decisions.

After the HMO and its physicians “repeatedly refused” to
refer her husband to a lung specialist for a lung transplant,
McCall filed the complaint. Her husband who suffered from
progressive lung disease eventually left the HMO and enrolled
in traditional Medicare. During the switch his health worsened
and he died shortly after getting the transplant, say court
documents. The lawsuit is scheduled for a March hearing in
California.

Source: “The U.S. high court’s decision means that a California
medical negligence case against PacifiCare can go forward, “
Tanya Albert, AMNews staff. Nov. 5, 2001.

-Citizens’ Council on Health Care
-November 2. 2001.


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PATIENT SAFETY UNDER THE SCOPE AT HHS

The U.S. Department of Health and Human Services has just awarded
a contract to The Medstate Group to research patient safety. The
contract is part of the $50 million patient safety initiative
announced in October. Medstat wil “conduct a study and develop
recommendations for integrating diverse medical events tracking
and reporting systems used in four divisions of HHS” including the
Agency the healthcare REsearch and Quality, The Center for Disease
Control and prevention, the Centers for Medicare and Medicaid
Services, and the Food and Drug Administration.

Medstat, a vendor of market intelligence and benchmark analysis
software, is part of the Thomson Corporation and based in Ann Arbor
Michigan.

Source: “Medstat to Study Patient Safety at HHS” Health Data
Management.com, October 23, 2001.
http://www.healthdatamanagement.com/html/news/NewsStory.cfm?DID=6960

-Citizens’ Council on Health Care
-November 2, 2001


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WORRY ABOUT DATABASES NOT ID CARDS

The government doesn’t need a National ID. It has databases,
lots of them, all waiting to be connected, linked and merged.
Law enforcement and intelligence agencies can simply increase
their collection of data from government agencies, banks,
transportation authorities and credit-card companies. Don’t
get caught up in the “red herring debate around the ID cards
themselves” Heather Green warns in Business Week. The U.S. is
”already a database nation.”

”By creating data-gathering systems in the background that pull
together information about people—including their travel
plans, frequent-flier info, license certification, border
crossings, and financial records—law-enforcement and
intelligence agencies can run a robust national ID system without
the card itself.”

In the new war against terrorism, law enforcement is looking a
”beefing up” their databases. Citizens need to be sure
information collected for one purpose cannot be used for another,
and have terrorism clearly defined so that protests against U.S.
policies don’t put innocent citizens in jail.

History has proven that government does not always protect
individual rights. Citizens have a duty to “fight for the
protection of rights that they believe are the foundation of a
democracy. Privacy is a civil liberty worthy of protection.”

Source: “Databases adn Security vs. Privacy,” Heather Green,
Business Week Online, October 8, 2001
http://www.businessweek.com/technology/content/oct2001/tc2001108_3550.htm

CCHC COMMENTARY: Most national ID card proposals call for
digital fingerprints or other biometric identifiers. As of
yet there are few databases with this information. It behooves
citizens to consider carefully how to protect their biometric
and signature data for being accumulated in a database. The
growing number of child identification schemes would create
such databases of children who will grow into adults.

-Citizens’ Council on Health Care
-November 2, 2001


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HOSPITALS WANT FEDERAL MONEY FOR ATTACK PREPAREDNESS

Lack of funds and federal laws are hindering hospitals in their
preparations for future terrorist attacks, charges the American
Hospital Association.

o The organization’s 5,000 nonprofit member hospitals—or
some 85 percent of U.S. hospitals—are looking for about
$10 billion to respond within the first 24 to 48 hours of
a large-scale chemical, nuclear or biological attack.

o As a baseline, the organization assumes that urban
hospitals would receive 1,000 casualties in the immediate
aftermath of any attack—and rural hospitals would
receive 200.

o Hospitals’ weaknesses range from old mobile-radio systems,
insufficient clothing and respiratory gear to protect
personnel, insufficient facilities to isolate or
decontaminate patients and staff and short stocks of
antibiotics and other supplies.

Experts say hospitals could also be hampered by federal laws.
Antidumping statutes—which prohibit hospitals from
transferring patients to other facilities unless the patients
have been evaluated and stabilized—could undermine plans to
direct patients with specific exposures to specified treatment
centers.

Patient-privacy regulations which will go into effect soon could
complicate surveillance programs to detect an outbreak early and
to notify relatives of the status of victims of an attack.

Source: “U.S. Hospitals May Need $10 Billion to Be Prepared for
Bioterror Attack,” Wall Street Journal, October 29, 2001.

For text (WSJ subscribers)
http://interactive.wsj.com/articles/SB1004306954436743280.htm

Source: Taken directly from Daily Policy Digest, the National
Center for Policy Analysis, 10/29/01 http://ncpa.org


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NOTE: These news items have been taken directly
from email received by CCHC or from Internet
newspaper publications. Titles in ALL CAPS are
CCHC creations except for those heading articles
from the National Center for Policy Analysis,
the Health Law Pulse, PrivacySecurityNetwork,
and LIST.HEALTHPLAN. Credit to the sending
organization or news service is listed at the
end of each article.
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CITIZENS’ COUNCIL ON HEALTH CARE
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