ACLU Expresses Significant Doubts About New Draft of Medical Privacy Bill

June 15, 1999 12:00 am

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Tuesday, June 15, 1999

WASHINGTON — Warning that law enforcement officers would have virtually unbridled access to a patient’s medical records, the American Civil Liberties Union expressed significant reservations about a new version of medical privacy legislation under consideration by a Senate committee today.

After weeks of negotiating the differences between three medical records privacy bills introduced this year, Senator James Jeffords, the Chairman of the Senate Health, Education, Labor and Pensions Committee, unveiled a new draft of his legislation before his committee today.

The ACLU — which had earlier endorsed a competing medical records proposal crafted by Senators Patrick Leahy, D-VT, and Edward Kennedy, D-MA — said that the new Jeffords bill would represent a setback for patient privacy in at least two key areas. The legislation would:

  • Allow law enforcement officials to obtain or browse through medical records on request, making every patient’s medical records part of a new massive law enforcement database. In many situations, the draft bill does not require the police to demonstrate probable cause before obtaining access to personal health information.

  • Preempt efforts by state legislatures to pass new privacy laws concerning medical treatment, payment and research. Existing state laws would remain in place, but states would largely be blocked from addressing this issue in the future.

“Law enforcement officials must not have unbridled access to individual medical records,” said Ronald Weich, an ACLU legislative consultant. “This highly personal information deserves Fourth Amendment protection, and the Fourth Amendment requires the police to demonstrate a basis for their suspicions. The computerized medical records of ordinary Americans must not become a new law enforcement database.”

A former Assistant District Attorney in New York City, Weich recently testified about law enforcement access to medical records before the Senate Health and Labor Committee. In his testimony, Weich said that law enforcement could function quite effectively under the Leahy-Kennedy approach.

“Respect for the Fourth Amendment does not hamper police and prosecutors,” Weich said. “In my experience, the exercise of police power within rules that protect privacy actually increases citizen trust in law enforcement and encourages law abiding behavior.”

The ACLU urged that the new bill be amended to bring it in line with the Leahy-Kennedy protections or, alternatively, to allow regulations proposed by Health and Human Services Secretary Donna Shalala to go into effect in August. “No bill at all would be better than a bad bill,” Weich said. “And we hope that this bill gets back on track as the legislative process moves forward.”

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