Date: Thu, 5 Apr 2001 19:16:54 -0400 From: freematt@coil.com (Matthew Gaylor) Subject: DefendYourPrivacy.com: Just the Facts, mam! To: freematt@coil.com (Matthew Gaylor)
Date: Wed, 4 Apr 2001 18:05:28 -0500 From: George Getz <GGetz@compuserve.com> Subject: DefendYourPrivacy.com: Just the Facts, mam!
Dear Declan:
A friend has forwarded me comments from Peter Swire, an academic and former OMB bureaucrat, who claims that some of the material on the LP's DefendYourPrivacy.com site is seriously misleading in regard to the HHS "privacy" regulation.
Let me take a moment to respond.
Swire says:
> Sorry. The rule simply does not do this. The baseline today
> is zero legal protection of medical privacy at the national level.<
Let's get serious here. If all the government wanted to do was "protect your medical privacy" it wouldn't need a 368-page regulation to do it. In fact, the task could be accomplished in one sentence: "Any individual or entity that knowingly accesses or isseminates any other individual's medical records without their consent shall be fined not more than $10,000, sentenced the three years in prison, or both." (or whatever.)
The only reason they needed a regulation the length of The Brothers Karamazov is that they wanted to provide a blueprint for precisely *how* the health data would be turned over to "third parties."
No wonder "industry groups," like the Association for Electronic Health Care Transactions that Mr. Swire quotes so favorably later in this -mail, support the regulation. Why in the world should "industry groups" have to procure all this valuable information at their own expense when they can simply get the feds to do it for them for free?
By the way, Mr. Swire, can you tell me precisely how allowing pharmacies to share patients' prescription records with "business associates" for the purpose of marketing "health-related products and services," as Section 164.514 does, will help protect medical privacy? (Take all the time you need.)
Swire writes:
" > The rule would substantially reduce the number and type of medical records that would be transferred to others without your consent.<
You'd better tell that to doctors Michael Arnold Glueck and Robert J. Cihak, who wrote in a March 2 column in WorldNetDaily.com, "Any government agent claiming a 'national priority purpose' can poke around in your most private medical details. In many cases, the government can then release your personal medical information from government files without anybody having to ask your permission." http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=21910
Swire writes:
> There are exactly two, and only, two instances where the rule would
> require any new transfer of medical records.
>
> First, patients would gain the right to access their own
> records; that is, providers and plans would now have an obligation to
> let patients see their records upon request.<
If so, then your quarrel is with the American Association of Physicians and Surgeons, which wrote in a March 15 letter to Thompson: "In a nutshell, we object to the way the rule gives greater rights of access to the government than to the patient himself. . . . There is no justification for permitting public health surveillance and dissemination of personal medical records." The letter can be read at http://www.aapsonline.org/aaps/confiden/hhscounscomm.htm
Swire:
>>Second, as explained in detail in the comments I submitted to
> HHS (available on front page of www.osu.edu/units/law/swire.htm),
> HHS would gain a limited power to get records in the course of
> enforcing against privacy violations.<
Thanks for attaching your letter, Mr. Swire. Why am I not surprised that you and "industry groups" -- and the government, of course -- are in support of the regulation?
Swire:
> Not "millions of government
> bureaucrats" by any stretch of the imagination -- the current HHS
> enforcement staff is expected to be in the low double-digits
> nationwide.<
I imagine that the Social Security Administration staff was quite small when the SSN was created back in 1935, maybe even in the single digits. But it didn't stay that way for long, did it? And it certainly didn't prevent them from turning the SSN into a defacto national identifier that is now accessible to almost everyone, did it? Can you give us any reason to believe that the information called for today by the HHS, including the "unique health identifier" referred to on page 82470, will receive any more "protection" than the SSN did?
Swire:
>The industry group Association fo
> Electronic Health Care Transactions has said that "arguments that the
> privacy rule will authorize the federal government to compile patient
> medical records are hyperbole." <
Well, let's see. U.S. Rep. Ron Paul of Texas, himself a physician, said in a March 26 column:"Patients will have only limited knowledge of who sees their records. Ultimately, your medical history will be readily available to any government agency that wishes to create a national medical database." http://www.house.gov/Paul/tst/tst2001/tst032601.htm
Have you contacted Rep. Paul, and the co-sponsors of his resolution to kill the regulations, and admonished them for their "hyperbole?"
Swire:
>Concerning claims such as those in
> the DefendYourFreedom petition, AFEHCT says: "It is not a mass data
> gathering activity. We believe this rhetoric to be hyperbole and not
> constructive. We hope the Secretary and HHS will not be persuaded."<
Mr. Swire, you are correct that our comments are "not constructive," if by "constructive" you mean helpful to government efforts to seize control over private medical records. And we're quite proud of that, actually.
I'm also happy to report that, according to the counter on the DefendYourPrivacy.com site, 25,396 Americans already have e-mailed their representatives asking them to co-sponsor Rep. Paul's bill. That's an average of 58 letters per congressional office, which means we're having an impact already, and of course we intend to continue.
Mr. Swire, don't hesitate to contact me directly if you have any other concerns about the information on DefendYourPrivacy.com
Sincerely,
George Getz Press Secretary Libertarian Party 202-333-0008 ext. 222
NOTE: Mr. Swire's e-mail to Declan is attached below.
> From: "Peter P. Swire" <swire.1@osu.edu>
> Subject: Re: FC: Petition against HIPAA regulations from
> defendyourprivacy.com
>
> Declan:
>
> I do not wish to burden your list with more on medical
> privacy than the readers want, but the petitionyou posted today is
> seriously misleading and I think your readers should know. The
> petition has as it's main theme the idea that the medical privacy
> rule will increase and require the flow of medical records. For
> instance, the DefendYourPrivacy.com petition says:
>
> "The result? Soon millions of government bureaucrats, clerks in
> insurance companies, HMO's and even drug marketing companies will
> have access to your confidential medical records without your
> permission."
>
> Sorry. The rule simply does not do this. The baseline today
> is zero legal protection of medical privacy at the national level.
> The rule would substantially reduce the number and type of medical
> records that would be transferred to others without your consent.
> There are exactly two, and only, two instances where the rule would
> require any new transfer of medical records.
>
> First, patients would gain the right to access their own
> records; that is, providers and plans would now hve an obligation to
> let patients see their records upon request.
>
> Second, as explained in detail in the comments I submitted to
> HHS (available on front page of www.osu.edu/units/law/swire.htm),
> HHS would gain a limited power to get records in the course of
> enforcing against privacy violations. Not "millions of government
> bureaucrats" by any stretch of the imagination -- the current HHS
> enforcement staff is expected to be in the low double-digits
> nationwide. On this point, the industry group Association for
> Electronic Health Care Transactions has said that "arguments that the
> privacy rule will authorize the federal government to compile patient
> medical records are hyperbole." Concerning claims such as those in
> the DefendYourFreedom petition, AFEHCT says: "It is not a mass data
> gathering activity. We believe this rhetoric to be hyperbole and not
> constructive. We hope the Secretary and HHS will not be persuaded."
> See www.afehct.org.
>
> My comments explain other reasonsto support the rule. More
> importantly, the debate should focus on legitimate issues where
> there can be honest disagreement, not ill-informed petitions that
> describe the rule incorrectly.
>
> Peter
>
> Prof. Peter P. Swire
> Ohio State University College of Law
> (Chief Counselor for Privacy, U.S. Office of Management and Budget,
> 1999-2001)
> cell: (301) 213-9587
> swire.1@osu.edu
> www.osu.edu/units/law/swire.htm
###
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