Something's jammed, but not the fax machine

BLUMNER E-mail: Click here Archive

By ROBYN E. BLUMNER

© St. Petersburg Times, published February 13, 2000

The ease and convenience of technologies such as e-mail and faxes have helped put the "public" back in the regulatory public-comment period. Last year, the Federal Deposit Insurance Corp. was inundated with hundreds of thousands of letters, faxes and especially e-mails from average Americans -- not just banking insiders -- critical of a plan to make banks spy on their customers for the government. The outcry led the agency to withdraw the regulations.

The Department of Health and Human Services apparently took that as an object lesson that an agency accessible to members of the public may actually get comments, and has put rules in place to make sure it avoids that eventuality.

While every federal agency must open newly proposed regulations to public comment, HHS has defined "the public" as only those with lawyers or staff enough to slog through its burdensome procedures. Anyone who doesn't consult the mind-numbing Federal Register, the government's journal of rulemaking, and follow the public-comment rules to the letter will find his or her comments relegated to the proverbial and possibly literal trash heap.

More than 2,400 members of the public found that out the hard way in December when the agency rejected their comments on President Clinton's proposed regulations protecting medical privacy.

The individuals had sent faxes to HHS expressing concern over the lack of muscularity in the privacy protections. As proposed, the regulations actually ease access to medical records for law enforcement, giving police the ability to simply demand sensitive health data without a warrant or any judicial oversight. They also allow for the submission of medical records to government health databases without patient knowledge or consent.

The instantly faxable forms detailing these concerns and others were provided on the Web site of the American Civil Liberties Union. After weeks of receiving thousands of faxes, HHS informed the ACLU that it would refuse all comments sent by fax because they arrived the wrong way.

What's the right way?

Apparently the mail is acceptable, but the rules say you must send your comments in quadruplicate, along with a requested but not mandatory electronic version. Your four copies plus floppy disk will also be accepted if delivered in person.

As for e-mail, the agency won't accept electronic comments other than through its Web site. But if you go there, expect a Where's Waldo search before you find the proper comments form. It doesn't come up using the site search engine, and unless you have the expertise to know that the medical privacy regulations are part of something called "administrative simplification," you'll be pretty much out of luck.

It makes you wonder what "human services" is doing in the title? Laughing sardonically, perhaps?

A spokeswoman for HHS, Lorrie McHugh, admits the "no faxes" rule was established because the agency expected "a large volume of comments." She says the concern was that the fax machine would jam and comments would be lost. The agency's primary goal, McHugh says, is "to ensure we get all the comments."

I pointed out that letters can get lost in the mail, yet the agency accepts comments that way, and, as opposed to a lost letter, the sender is informed when a fax does not properly transmit. She reiterated that jammed faxes were a real problem. McHugh also disputes the 2,400 faxes figure the ACLU claims to have sent through its Web site. She says that all told the agency has received fewer than 100 comments in faxed form but hastened to add that the discrepancy might have been because "the fax machines were jamming." Following our conversation, McHugh faxed me a copy of the public-comment rules from the Federal Register. I felt lucky to have had my transmission sneak through in what must have been a rare moment of fax-machine health.

The bigger point here is that, unlike most of the regulations proposed in Washington, rules over the privacy of one's medical records directly affect most Americans. Knowing that it might be deluged with comments, HHS decided to play a hide-and-seek game, purposely cutting off those avenues of communication most convenient to people today.

Reluctant bureaucrats should not be free to transform the public-comment period into a public-combat period. Laura Murphy, director of the ACLU's Washington legislative office, is right when she calls for a change in law to require every federal agency to adopt uniform procedures for accepting public comment, which should include every modern text-based mode of communication.

The comment period for the medical privacy regulations closes on Thursday. The ACLU has altered its Web site at http://www.aclu.org/action/medregs/medrules.html to send public comments directly to the proper place on HHS's Web site. The resulting volume, though, has overwhelmed the computer server for HHS, which has caused some comments to be denied access. It seems HHS has another jamming problem. Maybe it should try the fax machine.

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