New Jersey - Patient Consent
Please join with us to help regain the rights of patients to protect their own medical records!!! Our hands are tied without your support!
The administration removed the consent rule from the HIPAA regulations (Health Insurance Portability & Accountability Act) effective Oct. 15, 2002 and we are now in an awful mess, as professionals and as consumers.
FYI {NEW!!!!!! Suit filed April 10, 2003!!!!!}
AMHA-USA and The National Coalition of Mental Health Professionals & Consumers have joined a suit filed by the American Psychoanalytic Association as common plaintiffs against the Department of Health and Human Services. The suit seeks to reinstate "Consent" provisions of HIPAA, lost in administrative changes effective Oct. 15, 2002, and challenges regulatory permissions for disclosure enacted by that same revision of the privacy rules.
You may visit the AMHA website (http://www.AmericanMentalHealth.com) to see more about HIPAA rules & regulations.
If you have any questions please contact us,
Please join with us in this struggle for patient rights,
AMHA-NJ
467 Springfield Avenue
Suites 201 & 202
Summit, N.J. 07901
(908) 273-5627
Some history regarding the current HIPAA consent issue follows:
The current Administration is poised to eliminate the right to consent, (as we reported in June, 2002) according to an HHS (Health & Human Services) spokesperson "there is little chance the consent rule will be restored," as reported in the WSJ (June 6, 2002).
1) Effective therapist-patient relationships depend on the consumers' trust that the mental health professional will guard sensitive data and
communications. Eliminate consent and that trust evaporates along with access to effective MH care.
2) The WSJ story advised people to ask their doctors to keep records private--but when the right to eliminate consent is gone, doctors and mental health professionals who won't release patient records will be breaking the law! Most medical and MH professionals just won''t break the law and risk their licenses.
3) The public strongly favors medical privacy in every survey on the subject, yet this Administration is willing to destroy the trust needed for effective healthcare in order to maximize corporate profits.
4) The awful results of eliminating consent will include: people not telling their doctors their full medical or MH histories, people staying away from medical and MH care, flawed medical and MH data due to fears about revealing certain symptoms or conditions, a black market for private medical and MH care--those rich enough to pay cash will be able to find a few doctors or
mental health professionals who will risk seeing them privately--the rest will have to choose between privacy and obtaining health care 5) Tell the WSJ about the lengths you go to to protect privacy and preserve
the best conditions for treatment.
The following is a sample letter we wrote to the Wall Street Journal in June of 2002.
As a Psychotherapist for over 30 years I have a good deal of experience with clients and their needs. Two of their most basic needs are for confidentiality and privacy. Their medical records, for example, require an ethical and responsible protection by their therapists. How can people come to my office and share with me their most intimate and personal thoughts, feelings, and secrets if they cannot trust that I will protect what they say? I may be the only person, at times, with whom they share this information. So, how can I tell them that I am there just for them, that I will keep their secrets, that I will serve as their advocate, if the law tells me that I must betray my own patients, and, as the government may want us to believe, for their own good!
There have been managed care companies who have told mental health professionals that their private records are not private and that they, the managed care company, can come into the professional?s office whenever they want to and take their records. I need to make a living but I cannot betray my own patients so I have chosen not to work for these sorts of companies.
I also have had some negative experiences with my computer (e.g. with credit cards) so I decided, years ago, not to put anything on my computer which relates at all to my patients in the possible event that something about them could leak out somewhere. I do write reports on my word processor and while that is not on the internet I have known of examples of worms getting onto hard drives and pulling out confidential information and sending it out to other computers. Since I do not ever want my patient?s names or anything about them to become at all public through me I never attach any names to my reports in the word processor. I will hand write the names into the reports, along with any other identifying data, so that it is never on my computer.
If I am this careful with their information can you imagine what it would be like if all patient data were in data banks on computers. Any good hacker, or even someone in your own company, could find out whatever they wanted to about anyone listed in a computer. It is almost insane to me that there are people who believe that you could put patient information on the internet in data banks, especially without the benefit of privacy rules, and have it safe and protected. If we remove our client?s right of consent then what is next?
We are helping to make life easier for people (managed care and insurance companies, for example) who are profit-driven and not care or client-driven by removing from our laws things such as consent and privacy. I vote NO!!! Do not remove any consent or privacy rulings on behalf of our clients.
Charles I. Zadikow, Psy.D.
908.273.5627
Prying Eyes: The End of Medical Privacy
Tuesday, January 21, 2003
By Charlotte Twight
So you've finally worked up the courage to whisper to your doctor an embarrassing fact about your medical condition, revealing your innermost concerns.Guess what? You also may have just whispered your secret to countless unknown bureaucrats and industry operatives, and there's nothing you can do about it.Don't want to believe it? Then you'd better not read any further.The truth is that the federal government already has asserted virtually unlimited discretionary power to examine our personal medical records -- without a court order, without a warrant based on probable cause, without any judicial process whatsoever. Law-abiding citizens are the predominant targets and most likely victims of this unprecedented snooping by the U.S. government.This assault on our medical privacy is accelerating. In August 2002, the executive branch weakened the federal government's already flawed medical privacy regulations. In June 2002, a U.S. district court judge dismissed a well-founded constitutional challenge to the medical privacy rules. Finally, leaving little doubt about its endgame, the federal government revealed in fall 2002 that its planned "Total Information Awareness" program is targeting, among other things, medical information about all of us.We cannot take much comfort from the so-called medical "privacy" regulations spawned by the 1996 Health Insurance Portability and Accountability Act. Lest we forget, the perceived need for the regulations arose when the federal government itself jeopardized our medical privacy by mandating standardized, easily transmitted electronic databases of personal medical information nationwide. Federal officials eagerly developed data formats and codes to track everything from your diabetes to your medications and your last menstrual period.Unfortunately, the regulations purported to shield this cornucopia of deeply personal information emerged as anti-privacy regulations. Finalized by the Clinton administration in December 2000 and adopted by the Bush administration in April 2001, the regulations utterly failed to protect our medical records from the prying eyes of government officials and others.For example, health care providers covered by these rules "must permit access" by the secretary of Health and Human Services to the covered entity's "facilities, books, records, accounts, and other sources of information, including protected health information." That means your individual medical records. If the HHS secretary so demands, the physician or other covered entity "must permit access by the secretary at any time and without notice." In a heartbeat your medical records thus may be put in the hands of federal officials, with no judicial process required.Last August the Bush administration further weakened the HIPAA medical privacy rules. As a result, today patient consent is not required for disclosures of your personal medical information by covered entities in connection with medical treatment, payment or health care operations. Although patient authorization is required in certain other situations, a laundry list of over-broad exceptions retained from the original rules largely guts the authorization requirement.For example, uses and disclosures of personal medical information for "health oversight activities" do not require patient authorization. Moreover, HIPAA does not authorize effective legal restraints on redisclosure of our medical information once it is given to a third party such as a business associate of a health care provider. And the HHS secretary's unlimited discretionary authority to peruse our medical records remains unchanged.In August 2001, the Association of American Physicians and Surgeons, Rep. Ron Paul, R-Texas, and other plaintiffs brought a lawsuit challenging the original medical privacy regulations based in part on the First, Fourth and 10th amendments to the U.S. Constitution. The case is AAPS et al. v. U.S. Dept. of Health and Human Services, et al.Plaintiffs there alleged that, in violation of the Fourth Amendment, the regulations "provide the government with broad access to highly personal medical records of patients, without a warrant." They challenged as violative of the First Amendment "the chilling effect of the Privacy Regulations on patient-physician communications" and the authorization of "governmental access to virtually all patient-physician communications without consent, a warrant, or a compelling state interest."The AAPS further argued that the regulations exceeded the authority granted to the federal government by the Constitution's interstate commerce clause, thus "violat[ing] the Tenth Amendment to the extent they govern purely intrastate activities by physicians in using and maintaining medical records for patients."Nonetheless, on June 14, 2002, U.S. District Court Judge Sim Lake dismissed the plaintiffs" constitutional and statutory claims. Despite specific injuries cited by the plaintiffs, the court held that the plaintiffs' First and Fourth Amendment claims were not "ripe" for judicial decision and that "plaintiffs lack standing to pursue these claims," because "plaintiffs have suffered no actual or imminent injury due to enforcement of the Privacy Rule." The case is now on appeal to the U.S. 5th Circuit Court of Appeals.But the coup de grace to our medical privacy apparently may soon be delivered by the federal government's Total Information Awareness program, headed by John Poindexter and developed under the Pentagon's Defense Advanced Research Projects Agency (DARPA) umbrella. Many now know the broad outlines of TIA, the Orwellian plan by the federal government to develop broad, interconnected electronic databases about virtually every aspect of the lives of law-abiding Americans.However, many do not know that -- in addition to financial, education, travel, veterinary (yes, veterinary), country entry, transportation, housing, communication, and other types of data -- the Total Information Awareness program is targeting personal medical information. It is specifically listed as key "transactional data" flowing into the "automated virtual data repositories" described on the Total Information Awareness system Web site.Of course, this is said to be for the purpose of catching terrorists. But one must ask why the federal government continues to shun more focused efforts to thwart terrorists while so fervently seeking to scrutinize the personal activities of even the most honorable among us.Today, a law-abiding citizen's only opportunity to keep his or her medical information out of government hands is to find physicians who are opting out of the standardized electronic database system. To opt out, physicians must avoid transmitting any health information electronically in connection with transactions covered by the regulations, thereby qualifying for the "country doctor" exception to the federal database requirements. Those who limit their practice in this way are not considered to be "covered entities" and thus are not subject to the "privacy" regulations.But today's brightest hope regarding medical privacy is the ongoing AAPS lawsuit against the U.S. Department of Health and Human Services. Let us hope that the 5th Circuit Court of Appeals gets it right.
Charlotte A. Twight, professor of economics at Boise State University and adjunct scholar at the Cato Institute, is author of Dependent on D.C.: The Rise of Federal Control over the Lives of Ordinary Americans (Palgrave/St. Martin's Press, January 2002).Please join with us to help regain the rights of patients to protect their own medical records!!! Our hands are tied without your support!
The administration removed the consent rule from the HIPAA regulations (Health Insurance Portability & Accountability Act) effective Oct. 15, 2002 and we are now in an awful mess, as professionals and as consumers.
FYI {NEW!!!!!! Suit filed April 10, 2003!!!!!}
AMHA-USA and The National Coalition of Mental Health Professionals & Consumers have joined a suit filed by the American Psychoanalytic Association as common plaintiffs against the Department of Health and Human Services. The suit seeks to reinstate "Consent" provisions of HIPAA, lost in administrative changes effective Oct. 15, 2002, and challenges regulatory permissions for disclosure enacted by that same revision of the privacy rules.
You may visit the AMHA website (http://www.AmericanMentalHealth.com) to see more about HIPAA rules & regulations.
If you have any questions please contact us,
Please join with us in this struggle for patient rights,
AMHA-NJ
467 Springfield Avenue
Suites 201 & 202
Summit, N.J. 07901
(908) 273-5627
Some history regarding the current HIPAA consent issue follows:
The current Administration is poised to eliminate the right to consent, (as we reported in June, 2002) according to an HHS (Health & Human Services) spokesperson "there is little chance the consent rule will be restored," as reported in the WSJ (June 6, 2002).
1) Effective therapist-patient relationships depend on the consumers' trust that the mental health professional will guard sensitive data and
communications. Eliminate consent and that trust evaporates along with access to effective MH care.
2) The WSJ story advised people to ask their doctors to keep records private--but when the right to eliminate consent is gone, doctors and mental health professionals who won't release patient records will be breaking the law! Most medical and MH professionals just won''t break the law and risk their licenses.
3) The public strongly favors medical privacy in every survey on the subject, yet this Administration is willing to destroy the trust needed for effective healthcare in order to maximize corporate profits.
4) The awful results of eliminating consent will include: people not telling their doctors their full medical or MH histories, people staying away from medical and MH care, flawed medical and MH data due to fears about revealing certain symptoms or conditions, a black market for private medical and MH care--those rich enough to pay cash will be able to find a few doctors or
mental health professionals who will risk seeing them privately--the rest will have to choose between privacy and obtaining health care 5) Tell the WSJ about the lengths you go to to protect privacy and preserve
the best conditions for treatment.
The following is a sample letter we wrote to the Wall Street Journal in June of 2002.
As a Psychotherapist for over 30 years I have a good deal of experience with clients and their needs. Two of their most basic needs are for confidentiality and privacy. Their medical records, for example, require an ethical and responsible protection by their therapists. How can people come to my office and share with me their most intimate and personal thoughts, feelings, and secrets if they cannot trust that I will protect what they say? I may be the only person, at times, with whom they share this information. So, how can I tell them that I am there just for them, that I will keep their secrets, that I will serve as their advocate, if the law tells me that I must betray my own patients, and, as the government may want us to believe, for their own good!
There have been managed care companies who have told mental health professionals that their private records are not private and that they, the managed care company, can come into the professional?s office whenever they want to and take their records. I need to make a living but I cannot betray my own patients so I have chosen not to work for these sorts of companies.
I also have had some negative experiences with my computer (e.g. with credit cards) so I decided, years ago, not to put anything on my computer which relates at all to my patients in the possible event that something about them could leak out somewhere. I do write reports on my word processor and while that is not on the internet I have known of examples of worms getting onto hard drives and pulling out confidential information and sending it out to other computers. Since I do not ever want my patient?s names or anything about them to become at all public through me I never attach any names to my reports in the word processor. I will hand write the names into the reports, along with any other identifying data, so that it is never on my computer.
If I am this careful with their information can you imagine what it would be like if all patient data were in data banks on computers. Any good hacker, or even someone in your own company, could find out whatever they wanted to about anyone listed in a computer. It is almost insane to me that there are people who believe that you could put patient information on the internet in data banks, especially without the benefit of privacy rules, and have it safe and protected. If we remove our client?s right of consent then what is next?
We are helping to make life easier for people (managed care and insurance companies, for example) who are profit-driven and not care or client-driven by removing from our laws things such as consent and privacy. I vote NO!!! Do not remove any consent or privacy rulings on behalf of our clients.
Charles I. Zadikow, Psy.D.
908.273.5627
Prying Eyes: The End of Medical Privacy
Tuesday, January 21, 2003
By Charlotte Twight
So you've finally worked up the courage to whisper to your doctor an embarrassing fact about your medical condition, revealing your innermost concerns.Guess what? You also may have just whispered your secret to countless unknown bureaucrats and industry operatives, and there's nothing you can do about it.Don't want to believe it? Then you'd better not read any further.The truth is that the federal government already has asserted virtually unlimited discretionary power to examine our personal medical records -- without a court order, without a warrant based on probable cause, without any judicial process whatsoever. Law-abiding citizens are the predominant targets and most likely victims of this unprecedented snooping by the U.S. government.This assault on our medical privacy is accelerating. In August 2002, the executive branch weakened the federal government's already flawed medical privacy regulations. In June 2002, a U.S. district court judge dismissed a well-founded constitutional challenge to the medical privacy rules. Finally, leaving little doubt about its endgame, the federal government revealed in fall 2002 that its planned "Total Information Awareness" program is targeting, among other things, medical information about all of us.We cannot take much comfort from the so-called medical "privacy" regulations spawned by the 1996 Health Insurance Portability and Accountability Act. Lest we forget, the perceived need for the regulations arose when the federal government itself jeopardized our medical privacy by mandating standardized, easily transmitted electronic databases of personal medical information nationwide. Federal officials eagerly developed data formats and codes to track everything from your diabetes to your medications and your last menstrual period.Unfortunately, the regulations purported to shield this cornucopia of deeply personal information emerged as anti-privacy regulations. Finalized by the Clinton administration in December 2000 and adopted by the Bush administration in April 2001, the regulations utterly failed to protect our medical records from the prying eyes of government officials and others.For example, health care providers covered by these rules "must permit access" by the secretary of Health and Human Services to the covered entity's "facilities, books, records, accounts, and other sources of information, including protected health information." That means your individual medical records. If the HHS secretary so demands, the physician or other covered entity "must permit access by the secretary at any time and without notice." In a heartbeat your medical records thus may be put in the hands of federal officials, with no judicial process required.Last August the Bush administration further weakened the HIPAA medical privacy rules. As a result, today patient consent is not required for disclosures of your personal medical information by covered entities in connection with medical treatment, payment or health care operations. Although patient authorization is required in certain other situations, a laundry list of over-broad exceptions retained from the original rules largely guts the authorization requirement.For example, uses and disclosures of personal medical information for "health oversight activities" do not require patient authorization. Moreover, HIPAA does not authorize effective legal restraints on redisclosure of our medical information once it is given to a third party such as a business associate of a health care provider. And the HHS secretary's unlimited discretionary authority to peruse our medical records remains unchanged.In August 2001, the Association of American Physicians and Surgeons, Rep. Ron Paul, R-Texas, and other plaintiffs brought a lawsuit challenging the original medical privacy regulations based in part on the First, Fourth and 10th amendments to the U.S. Constitution. The case is AAPS et al. v. U.S. Dept. of Health and Human Services, et al.Plaintiffs there alleged that, in violation of the Fourth Amendment, the regulations "provide the government with broad access to highly personal medical records of patients, without a warrant." They challenged as violative of the First Amendment "the chilling effect of the Privacy Regulations on patient-physician communications" and the authorization of "governmental access to virtually all patient-physician communications without consent, a warrant, or a compelling state interest."The AAPS further argued that the regulations exceeded the authority granted to the federal government by the Constitution's interstate commerce clause, thus "violat[ing] the Tenth Amendment to the extent they govern purely intrastate activities by physicians in using and maintaining medical records for patients."Nonetheless, on June 14, 2002, U.S. District Court Judge Sim Lake dismissed the plaintiffs" constitutional and statutory claims. Despite specific injuries cited by the plaintiffs, the court held that the plaintiffs' First and Fourth Amendment claims were not "ripe" for judicial decision and that "plaintiffs lack standing to pursue these claims," because "plaintiffs have suffered no actual or imminent injury due to enforcement of the Privacy Rule." The case is now on appeal to the U.S. 5th Circuit Court of Appeals.But the coup de grace to our medical privacy apparently may soon be delivered by the federal government's Total Information Awareness program, headed by John Poindexter and developed under the Pentagon's Defense Advanced Research Projects Agency (DARPA) umbrella. Many now know the broad outlines of TIA, the Orwellian plan by the federal government to develop broad, interconnected electronic databases about virtually every aspect of the lives of law-abiding Americans.However, many do not know that -- in addition to financial, education, travel, veterinary (yes, veterinary), country entry, transportation, housing, communication, and other types of data -- the Total Information Awareness program is targeting personal medical information. It is specifically listed as key "transactional data" flowing into the "automated virtual data repositories" described on the Total Information Awareness system Web site.Of course, this is said to be for the purpose of catching terrorists. But one must ask why the federal government continues to shun more focused efforts to thwart terrorists while so fervently seeking to scrutinize the personal activities of even the most honorable among us.Today, a law-abiding citizen's only opportunity to keep his or her medical information out of government hands is to find physicians who are opting out of the standardized electronic database system. To opt out, physicians must avoid transmitting any health information electronically in connection with transactions covered by the regulations, thereby qualifying for the "country doctor" exception to the federal database requirements. Those who limit their practice in this way are not considered to be "covered entities" and thus are not subject to the "privacy" regulations.But today's brightest hope regarding medical privacy is the ongoing AAPS lawsuit against the U.S. Department of Health and Human Services. Let us hope that the 5th Circuit Court of Appeals gets it right.
Charlotte A. Twight, professor of economics at Boise State University and adjunct scholar at the Cato Institute, is author of Dependent on D.C.: The Rise of Federal Control over the Lives of Ordinary Americans (Palgrave/St. Martin's Press, January 2002).
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