A Times Editorial

Keep medical records private

What goes on between you and your physician is a private matter. But the law has been slow to recognize this fact. No federal statutes protect the privacy of medical records, and state laws are all over the map, some providing strong protections and others none at all.

In the meantime, health information is becoming more accessible and sensitive. In the last few years, reports of the consequences of leaked medical records have been in the news: The Washington Post reported on Terri Seargent from North Carolina, who believes she was fired for having an expensive genetic disorder. Her employer was self-insured. USA Today featured the story of an Atlanta truck driver who was fired after his employer learned he had been treated for an alcohol problem. And tennis player Arthur Ashe had his HIV status disclosed by a health care worker without his permission.

In 1996, Congress ordered the development of federal rules to address the burgeoning issues of medical privacy. But Congress proved incapable of agreeing on the parameters of the new rules, and the duty fell to the Department of Health and Human Services, which, during the Clinton administration, promulgated a comprehensive series of health privacy regulations.

This month, Secretary of Health and Human Services Tommy Thompson stymied the implementation of some of the core provisions of those regulations.

Initially, consent was required before doctors and hospitals could disclose a patient's health information. Due to pressure from the health care industry, Thompson has eliminated the requirement. The change defies the stated purpose of the regulations.

Consent by the patient before disclosure is the key to medical privacy. Doctors already have an ethical obligation to keep the confidence of their patients. Why then is there a problem with writing that duty into law? But the provider community of hospitals and doctor groups balked at the requirement, saying it would be administratively burdensome.

The changes proposed by Thompson, which are open for a 30-day public comment period that started March 27, give health care providers wide-ranging freedom to disclose highly sensitive medical information. For example, medical records can be disclosed without patient permission for "health care operations," a term defined so broadly it takes up nearly an entire column in the Federal Register. Health care operations includes analyzing health care costs and evaluating the competence of doctors, among other activities.

Another disturbing change proposed by Thompson would eliminate federal medical privacy protection for minors. Numerous states grant minors the right to make their own medical decisions for services they may be reluctant to seek if parental permission is required, such as treatment for sexually transmitted diseases, access to abortions and drug rehabilitation. As originally written, the federal regulations would have prevented the release of medical records for these services without the minor's permission. Thompson's changes now would allow parents access to these records without minors' consent if the provider agrees.

The federal regulations still would allow state laws offering broader medical privacy to remain in effect. However, the effort to reassure patients across the country that their medical histories would remain closed unless they said otherwise is ending with disappointing results.

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