The tortuous path of the HIPAA privacy provision

“Whatever, in connection with my professional practice, or not in connection with it, I may see or hear in the lives of men which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret.” –Oath of Hippocrates From the very beginning, when the privacy rule of the Health Insurance Portability and Accountability Act was first released by HHS in the waning days of the Clinton administration in late 2000, the Hippocratic Oath has taken a back seat to national security, many observers contend.
HIPAA was passed in 1996 with some privacy penalty provisions in place, but Congress gave itself a three-year grace period to come back and flesh out the law with specific privacy legislation. That never happened. Instead, legislative foot-dragging triggered a HIPAA provision that said if Congress failed to act on privacy within three years of passage, HHS was given the authority to write the privacy rule itself. Even that first issue of an HHS-written HIPAA privacy rule allowed disclosures of medical records for national security requests, but since then, the Justice Department and HHS, the key federal agency pushing healthcare information technology, have teamed up to seriously weaken the HIPAA privacy rule while Congress and the Bush administration have sought to expand government access to health records for national security reasons, according to lawyers and privacy advocates.
That doesn’t mean the Justice Department or HHS are implicated in illegally exposing medical records to surveillance, but it does mean the relaxation of the rule makes it easier for government surveillance agencies to obtain healthcare data from commercial sources, those sources say.
… “The (RTI) fraud-and-abuse report was the absolute worst, giving everything over to private industry,” says Deborah Peel, an Austin, Texas, psychiatrist and the founder of the not-for-profit Patient Privacy Rights Foundation.
Peel says individuals have an ancient right to health information privacy, first recorded in the Hippocratic Oath, but also protected by the U.S. Constitution, federal, state and common laws.
But in recent years, Peel says, the government has engaged in “a concerted effort to gut and eliminate an individual’s control over digital information. It’s absolutely a systemic pattern. Over and over again, you see document after document coming out of ONCHIT and HHS, and they want to open up healthcare records for data mining. There is never a decision for privacy. They want back doors into everything. Someone is directing this because it’s not happening by accident.”

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