NCMHPC Report on HIPAA

Report from the National Coalition of Mental Health Professionals and Consumers

INCALCULABLE HARM TO ALL:

HIPAA and the Bush Administration's Elimination of Privacy Rights and Protections

On October 15, 2002 the final Department of Health and Human Services rule on privacy completely eliminated everyone’s control over her or his personal health information. This stripping away of key privacy protections was accomplished by modifying the Privacy Rule. HHS eliminated your right to decide whether your medical information can be shared for the purpose of health care treatment, payment and health care operations.

This is the serious danger existing right now. Much of the public does not realize this has happened to them, and their loved ones. Many professional practitioners have been engaged in the worried rushing to be “HIPAA compliant.” Professionals need to face the realities of being able to practice, and to practice in compliance with the laws of our land. BUT the divide and conquer effects on health care professionals keep us looking at the details of “risk management” near at hand, missing the fact that our patients’ and our constitutional rights have been taken away to promote and protect corporate interests.

The danger of the public not knowing about their increased lack of safety is monumental. It is essential for the public to be given full knowledge of all the destruction of our rights so far, and full knowledge of further threats to privacy protections, including threats that the Congress or administration may try to override the sovereign rights of our states to protect us.

What does this mean? Your private records are available to literally millions of companies for their financial gains. Confidentiality—privileged communication, which is the very foundation of trust and safety in mental health care, indeed in all health care—no longer exists. The elimination of real privacy protections serves to destroy all patient-practitioner relationships. This creates incalculable, unforgivable harm.

Assaults on privacy rights erect more barriers to the access to health care, create more threats of stigma and more fears about jobs, about future employability and insurability, about credit card, loan and mortgage eligibility, and on and on. Only the wealthy could afford the private payment for their health care, which might afford them privacy about their own health history and their family health history. Only full privacy allows for the timely access to care and the full disclosure to health care professionals that can lead to optimal care.

The Bush administration’s HIPAA Amendments to the Privacy Rule:

(1) Provide government permission for millions of employees and “business associates” nationwide--even globally--to use and disclose the health information of anyone.

(2) Repeal the right to consent. Personal health information can be used and disclosed for health care treatment, payment or health care operations without the individual’s knowledge or consent. And, we must keep crystal clear in our thinking: When it comes to medical privacy, “Notification” is NOT equal to consent.

This current Rule strips citizens of their health care privacy. The substitution of giving notice that personal patient health information has been disclosed--rather than obtaining patients' informed consent to do so first--in practice means that the practitioner has to ask patients to sign a form acknowledging that they don't have the most basic right to consent. Patients are harmed further by having to face the choice of acquiescing to having no right of consent, trying to negotiate for that right or refusing treatment.

(3) Eliminate rights retroactively. Personal health information that has been disclosed to a physician in the past with the understanding and expectation that it would remain private can now be used and disclosed without the individual’s knowledge or consent. So what you thought was revealed in confidence, is now public.

(4) Allow the federal government to provide consent on behalf of each of us for all covered entities to obtain our personal health information regardless of our wishes.

(5) Disclose health information to unqualified entities. The amendments permit disclosures of identifiable health information to private entities known as “business associates.”

(6) Allow health providers to send you unsolicited “health recommendations” paid for by drug companies based on your private medical records, without your permission.

(7) Allow drug companies to have broad access to patient information without prior consent.

(8) Render consumers powerless. Consumers are powerless under the amendments to prevent the use or disclosure of communications with health care professionals in the past, present or future. The amendments permit the use and disclosure of protected health even if the individual pays out of pocket or never seeks another health service after the compliance date.

(9) Permit and support the development of medical and genetic databases with personal identifiable information without our permission or knowledge. There are not even requirements that consumers be notified that such disclosures have occurred, nor any tracking system of the senders and recipients of these disclosures.

What Can We Do About This Elimination of Our Rights?

(1) Since the sovereign states usually protect the privacy of citizens better than the federal government, we all need to work closely with our governors, state legislators, and attorneys general to make sure our state medical privacy laws and state constitutions are not overridden by federal law.

(2) Two federal level paths are being simultaneously pursued – legislation and litigation:

(a) Legislation: The Stop Taking Our Health Privacy Act (STOPH – H.R. 5646, Reps. Markey, Dingell, Waxman, et al.) addresses key privacy loopholes opened by the HHS Rule changes. To read the full text, go to www.house.gov/markey/iss_privacy_bt021016.pdf

(b) Lawsuit: The National Coalition of Mental Health Professionals and Consumers, the American Psychoanalytic Association, and other groups are preparing for filing a lawsuit challenging the constitutionality of this ruling. There is a lot of support from constitutional scholars and civil rights groups for these challenges to the HIPAA Rule changes.

FUNDING APPEAL

The Privacy Defense Fund

The National Coalition of Mental Health Professionals and Consumers needs your help in funding the extensive research and preparation for this lawsuit against the federal government.

Donations can be made to “NCMHPC” and designated for “The Privacy Legal Defense Fund,” possibly deductible as a business expense—check with your tax advisor.

Charitable donations can be made to “The Foundation for the Coalition of Mental Health Professionals and Consumers,” and will serve to support our educational and advocacy efforts.

Send donations to: NCMHPC,

P.O. Box 438, Commack, NY 11725.

Phone: 631- 424-5232.

Website: www.nationalcoalition.org/