The Medical Privacy Protection Resolution



HON. RON PAUL
OF TEXAS
IN THE HOUSE OF REPRESENTATIVES
Thursday, March 15, 2001


* Mr. PAUL. Mr. Speaker, I rise to introduce the
Medical Privacy Protection Resolution, which uses the
Congressional Review Act to repeal the so-called
Medical Privacy regulation. Many things in Washington
are misnamed, however, this regulation may be the most
blatant case of false advertising I have come across
in all my years in Congress. Rather than protect an
individual right to medical privacy, these regulations
empower government officials to determine how much
medical privacy an individual "needs.'' This
``one-size-fits-all'' approach ignores the fact that
different people may prefer different levels of
privacy. Certain individuals may be willing to
exchange a great deal of their personal medical
information in order to obtain certain benefits, such
as lower-priced care or having information targeted to
their medical needs sent to them in a timely manner.
Others may forgo those benefits in order to limit the
number of people who have access to their medical
history. Federal bureaucrats cannot possibly know,
much less meet, the optimal level of privacy for each
individual. In contrast, the free market allows
individuals to obtain the level of privacy protection
they desire.


* The so-called ``medical privacy'' regulations not
only reduce an individual's ability to determine who
has access to their personal medical information, they
actually threaten medical privacy and
constitutionally-protected liberties. For example,
these regulations allow law enforcement and other
government officials access to a citizen's private
medical record without having to obtain a search
warrant.


* Allowing government officials to access a private
person's medical records without a warrant is a
violation of the Fourth amendment to the United States
Constitution, which protects American citizens from
warrantless searches by government officials. The
requirement that law enforcement officials obtain a
warrant from a judge before searching private
documents is one of the fundamental protections
against abuse of the government's power to seize an
individual's private documents. While the Fourth
amendment has been interpreted to allow warrantless
searches in emergency situations, it is hard to
conceive of a situation where law enforcement
officials would be unable to obtain a warrant before
electronic medical records would be destroyed.


* Mr. Speaker, these regulations also require health
care providers to give medical records to the federal
government for inclusion in a federal health care data
system. Such a system would contain all citizens'
personal health care information. History shows that
when the government collects this type of personal
information, the inevitable result is the abuse of
citizens' privacy and liberty by unscrupulous
government officials. The only fail-safe privacy
protection is for the government not to collect and
store this type of personal information.


* In addition to law enforcement, these so-called
``privacy protection'' regulations create a privileged
class of people with a federally-guaranteed right to
see an individual's medical

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records without the individual's consent. For example,
medical researchers may access a person's private


* Forcing individuals to divulge medical information
without their consent also runs afoul of the fifth
amendment's prohibition on taking private property for
public use without just compensation. After all,
people do have a legitimate property interest in their
private information. Therefore, restrictions on an
individual's ability to control the dissemination of
their private information represents a massive
regulatory taking. The takings clause is designed to
prevent this type of sacrifice of individual property
rights for the ``greater good.''


* In a free society such as the one envisioned by
those who drafted the Constitution, the federal
government should never force a citizen to divulge
personal information to advance ``important social
goals.'' Rather, it should be up to the individuals,
not the government, to determine what social goals are
important enough to warrant allowing others access to
their personal property, including their personal
information. To the extent these regulations sacrifice
individual rights in the name of a
bureaucratically-determined ``common good,'' they are
incompatible with a free society and a constitutional
government.


* The collection and storage of personal medical
information ``authorized'' by these regulations may
also revive an effort to establish a ``unique health
identifier'' for all Americans. The same legislation
which authorized these privacy rules also authorized
the creation of a ``unique health care identifier''
for every American. However, Congress, in response to
a massive public outcry, has included a moratorium on
funds for developing such an identifier in HHS budgets
for the last three fiscal years.


* By now it should be clear to every member of
Congress that the American people do not want their
health information recorded on a database, and they do
not wish to be assigned a unique health identifier.
According to a survey by the respected Gallup Company,
91 percent of Americans oppose assigning Americans a
``unique health care identifier'' while 92 percent of
the people oppose allowing government agencies the
unrestrained power to view private medical records and
88 percent of Americans oppose placing private health
care information in a national database. Mr. Speaker,
Congress must heed the wishes of the American people
and repeal these HHS regulations before they go into
effect and become a backdoor means of numbering each
American and recording their information in a massive
health care database.


* The American public is right to oppose these
regulations, for they not only endanger privacy but
could even endanger health! As an OB-GYN with more
than 30 years experience in private practice, I am
very concerned by the threat to medical practice posed
by these regulations. The confidential
physician-patient relationship is the basis of good
health care. Oftentimes, effective treatment depends
on the patient's ability to place absolute trust in
his or her doctor. The legal system has acknowledged
the importance of maintaining physician-patient
confidentiality by granting physicians a privilege not
to divulge confidential patient information.


* I ask my colleagues to consider what will happen to
that trust between patients and physicians when
patients know that any and all information given their
doctor may be placed in a government database or seen
by medical researchers or handed over to government
agents without so much as a simple warrant?


* Mr. Speaker, I am sure my colleagues agree that
questions regarding who should or should not have
access to one's medical privacy are best settled by
way of contract between a patient and a provider.
However, the government-insurance company complex that
governs today's health care industry has deprived
individual patients of control over their health care
records, as well as over numerous other aspects of
their health care. Rather than put the individual back
in charge of his or her medical records, the
Department of Health and Human Services' privacy
regulations give the federal government the authority
to decide who will have access to individual medical
records. These regulations thus reduce individuals'
ability to protect their own medical privacy.


* These regulations violate the fundamental principles
of a free society by placing the perceived
``societal'' need to advance medical research over the
individual's right to privacy. They also violate the
fourth and fifth amendments by allowing law
enforcement officials and government favored special
interests to seize medical records without an
individual's consent or a warrant and could facilitate
the creation of a federal database containing the
health care data of every American citizen. These
developments could undermine the doctor-patient
relationship and thus worsen the health care of
millions of Americans. I, therefore, call on my
colleagues to join me in repealing this latest threat
to privacy and quality health care by cosponsoring the
Medical Privacy Protection Resolution.



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