Medical Miranda? So-called 'privacy' regulations eliminate patient consent for disclosure of medical records

Michael Arnold Glueck, M.D., and Robert J. Cihak, M.D.

Tuesday, April 15, 2003

It's always something!

New federal "privacy" regulations governing your medical records went into effect yesterday.

Why more regulations?

Federal government officials wrote them to implement HIPAA.

What's a HIPAA?

The Health Insurance Portability and Accountability Act of 1996 (HR 3103). Congress ostensibly created HIPAA to impose "administrative simplification" on the health care professions and to benefit insurance companies by standardizing insurance forms and procedures.

Why the fuss?

These so-called "privacy" regulations actually eliminate patient consent for disclosure of your medical records. "While masquerading as patient protection, the rules would actually eliminate any last shred of confidentiality and risk lives," said Kathryn A. Serkes, Public Affairs Counsel for The Association of American Physicians and Surgeons.

Will I notice anything different the next time I see my own doctor?

You might notice that your doctor isn't there. Some doctors have found it impossible to maintain their practice at the same time as spending the time and money to comply with the HIPAA regulations. They have closed their practices.

If your doctor is still in business, you will be asked to read, understand and sign at least eight pages of new forms. These forms will officially allow your doctor, insurance companies and government agencies to "use and disclose" your medical information for medical treatment, claims to insurance carriers and for government "health care operations."

What if I don't sign all these new forms?

The government could prevent your doctor from treating you. Even without your permission, the new rules require that your doctor and hospital give much of your medical information to government agencies.

The new government security rules for medical information will protect my medical privacy, won't they?

Maybe, but only after another two years goes by, when these new security rules take effect. The government also needs to get around to making sure that access to patient Medicare records and computerized information is limited to authorized people; at this time, some existing government databases, such as Medicare, aren't secure.

Even under these security rules, government officials claiming an undefined "national priority" purpose, or engaged in "health care operations" or "health oversight activities" can look at your medical information without your consent or knowledge.

Can anybody else look at my records?

Under some conditions, law enforcement, insurance employees and even marketers can use your records and information. At the same time, your doctors will have to be very careful when they discuss your medical condition lest the government accuse them of illegal communication, even if it's for your benefit.

Will this cost me anything?

Of course. Somebody has to pay for all the extra training, paperwork, computers and software. And that somebody is you, as a taxpayer and/or patient. The bureaucrats claim that insurance industry savings will balance these expenses. But in almost all cases, the costs of laws and regulations are grossly underestimated and the benefits and payoffs grossly overestimated.

Those who've decided to do without health insurance will be paying more even though there's not any possible benefit for them.

Why should I care if the government can look at my records?

You might not, but many people don't want their medical history open to federal government officials. In an AAPS survey of doctors, 87 percent have been asked by patients to lie or keep information out of their records.

Rep. Ron Paul, M.D., R-Texas, noted a Gallup survey which found that "92 percent of the people oppose allowing government agencies the unrestrained power to view private medical records."

Is anything being done about this HIPAA?

Several groups are suing the federal government to preserve your rights. In addition, Rep. Paul introduced the Patient Privacy Act, H.R. 1699, in the U.S. Congress just last week. We suggest you immediately tell your representatives to support H.R. 1699.

What can I do to protect my rights?

For your personal privacy, find out if your physician is, or intends to become, "HIPAA-compliant." If so, recommend that he pursue the "Country Doctor Escape Route" outlined by AAPS.

So, when you least expect it in your doctor's office, don't be surprised if your doctor tells you: "You have the right to remain silent. Anything you say can and will be used against you."

Michael Arnold Glueck, M.D., is a multiple-award-winning writer who comments on medical-legal issues. Robert J. Cihak, M.D., is a former president of the Association of American Physicians and Surgeons.

Contact Drs. Glueck and Cihak by e-mail at



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