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Medical records need protection

September 12, 1997
Editorial, Seattle Post-Intelligencer

The Clinton administration is suggesting that the medical records of American citizens be open to arbitrary and warrantless nosing about by state and federal police.

Required by a 1996 health care bill to develop comprehensive recommendations on medical privacy, the administration has responded by exempting law enforcement officials from almost all standards for safeguarding Americans' most intimate medical secrets.

The administration proposal, announced at a congressional hearing yesterday, recommends that health care providers and insurers be explicitly "permitted to disclose health information without patient authorization" to state and federal police. Now, as a rule, court orders must be obtained and patients notified for law enforcement officers to see or get their hands on medical records.

Under the administration proposal described in The New York Times, law enforcement agencies would not be required to get court orders or to notify patients when they seek medical records. Further, patients would not be assured of an opportunity to challenge the disclosure of their files, though the records could later be used against them in investigations or prosecutions. All this would leave individuals’ medical records less protected from police surveillance than the records of banks, cable television, video rental stores or e-mail users.

The Times quoted an administration official who conceded that "our recommendations accommodate the interests of law enforcement rather well. The Justice Department got almost everything it wanted," including "quick, confidential, unhindered access" to medical records.

The Justice Department got far too much, including the ability to circumvent the spirit if not the letter of constitutional protections against unreasonable search and seizure.

The justification for this unprecedented power to snoop in private medical records? The high priority that state and federal officials have placed on investigation of fraud in the health care industry. While fraud undoubtedly increases overall health care costs, no number of unprosecuted fraud cases justifies this staggering assault on the privacy of American citizens.

To counter abuse of this unprecedented power, the administration proposes a log system in which health care providers keep track of every instance in which they divulged a part of a patient's record to anyone. This is dreadfully inadequate and amounts to a massive bureaucratic bulge that can only increase costs. The administration would even restrict patients’ rights to inspect the logs if such inspection were likely to impede law enforcement activities.

And if the system were abused, and a patients’ records were illegitimately opened, or publicized or disclosed to an employer or potential insurer, what recourse would individuals have? They could — obviously after the fact and after the damage was done — file lawsuits in federal court.

That is no solution. The solution is to severely restrict access to medical records in the first place, allowing disclosure only under compelling circumstances warranted by a court order.

Several congressmen, including Rep. Jim McDermott, D-Wash, will propose legislation far more restrictive on outside access to medical records.

The medical file on the administration’s Orwellian proposal should contain a single entry: Dead on arrival.