Sen. Bennett Introduces Medical Records Privacy Bill

(April 26, 1999) Sen. Robert Bennett introduced the Medical Information Protection Act on Monday, April 26. The bill competes with S 573 which was introduced by Sen. Pat Leahy last month, and a yet to be introduced bill being drafted by Sen. Jim Jeffords and Sen. Chris Dodd. Congress has a self-imposed deadline of August for acting on medical records privacy.

Sen. Robert Bennett (R-UT) announced the introduction of his bill at a press conference held in the Dirksen Senate Office Building in Washington DC on Monday. The well orchestrated event featured supporters of the bill, as well as a backdrop of photo-op kids who have benefitted from medical research and programs. One point Sen. Bennett emphasized was that his bill, unlike the others, would garuntee that medical researchers would have access to certain medical records.

However, David Carle, an aide to Sen. Patrick Leahy (D-VT), told Tech Law Journal that "the Leahy bill will do nothing to undermine research, and draws specifically from the National Institutes of Health standards."

The Bennett and Leahy bills also differ on the subject of preemption of states laws, and access of law enforcement officials to personally identifiable medical records.

Sen. Bennett said that he had been working on this issue for three and one-half years. "I did not realize at that time how thorny a path we were going down with respect to this, and how many different interests have to be balanced."

Sen. Bob Bennett

"This is a much more complex issue than originally meets the eye," said Bennett. "Because, it is very easy to say we must keep records confidential. And then the question says, well, confidential from whom, and for what purposes. Well, we say there are -- these are the logical reasons why people should have access to someone's medical records."

"First, of course, is for treatments. A doctor, a health care provider, clearly has to have access to your medical records in order to understand your history to give you proper treatment."

"Second, legitimately for payment. Someone who is paying for your treatment ought to be able to get into the records to be sure that the treatment was given ..."

"Third, we got into, as we got further into the issue, is simple health care administration, for people who run the hospital, who need to have access to the records to know what is being done, for simple procedures, such as ordering supplies ..." During the question and answer session Sen. Bennett stated that "marketing" does not constitute a "legitimate health management function."

"Then there is the legitimate requirement on the part of the patient to access his or her own records. We were startled to discover that it is easier for you to get into your financial information, credit, to correct mistakes that may be there, than it is your medical information. And that isn't fair. And patients ought to have a right to know what is in their records, and if there are any errors there, the opportunity to correct them."

"Well now you have four different groups, that each one has a legitimate right to examine health care records, and finding a balance between these four groups has turned out to be more difficult than we had realized."

"There are two other forces or groups in our society that have reason to examine health care records."

"First, and perhaps the most important, are the researchers. If the access to medical records for research is shut off in the name of confidentiality we will in fact damage health care, and this will becomes, or has become one of the most difficult balances we have had to strike as we produced this legislation."

"And then, finally, law enforcement officials feel that it is necessary for them, on occasion, not on regular basis, but on occasion, to have access to health care records. So, trying to take the four daily activities regarding health care that I listed -- treatment, payment, administration, and individual rights -- and then balance them on the occasional, the groups that have reason for occasional access to health care records -- research and law enforcement -- has caused us to draft, redraft, to talk endlessly to people representing all of the various groups concerned with this, and finally come up with what we think is the proper balance between all of these interests."

Finally, Sen. Bennett addressed the issue of preemption. "One of the reasons we need some federal laws here is because there is a lack of uniformity. And, health records go clearly across state borders, all across the nation, again and again and again. And we have had to look at the various practices that are undertaken in the various states."

"The transfer of data back and forth across state lines cries for some kind of uniformity in handling of medical records, and for that reason, as well as the complexity reason, and the desire for balance, we have decided to support a federal law that preempts the states in areas that give us the uniformity and balance."

Preemption is a major point of difference between the Bennett and Leahy bills. Sen. Leahy stated on March 10, 1999 that his bill would not "preempt any federal or state law or regulation that offers greater privacy safeguards. We propose a floor rather than a ceiling."

Sen. Bennett's bill is backed by a list of supporters which includes much of the health care industry. In contrast, the Leahy bill is supported privacy advocates and the American Civil Liberties Union. Some opponents of the Bennett bill argue that the medical research issue is at best a red herring, and at worst, an excuse for weakening privacy protections.

Sen. Bennett's bill is cosponsored by Sen. Connie Mack (R-FL), and Sen. Frank Murkowski (R-AK). It will be referred to the Senate Committee on Health, Education, Labor and Pensions, which is chaired by Sen. Jim Jeffords (R-VT).