APA took its concerns about the proposed rules on medical-record privacy directly to the White House last month.

APA leaders met with Chris Jennings, President Bill Clinton’s deputy assistant for health policy, and Gary Claxton, deputy assistant secretary of the Department of Health and Human Services, to discuss shortcomings in the proposed rules and specific recommendations.

The Administration unveiled the proposed medical-record privacy rules in late October after Congress failed to enact comprehensive patient privacy legislation by August 21. The deadline was imposed in 1996 when Congress and the President recognized that national privacy standards were needed. Comments on the proposed rules are due January 3.

APA President Allan Tasman, M.D., told Psychiatric News, "Although the proposed regulations are an important first step, they don’t go far enough in protecting the confidentiality of the doctor-patient relationship. Patients must have the opportunity to provide informed consent if they are going to divulge sensitive information".

Other APA leaders who participated in the meeting were President-elect Daniel Borenstein, M.D., Vice President Richard Harding, M.D., Vice President Paul Appelbaum, M.D., and Jeremy Lazarus, M.D., chair of APA’s Joint Commission on Government Relations. Jay Cutler, director of APA’s Division of Government Relations, and William Bruno, an associate director of DGR, also attended the meeting.

Appelbaum said afterward, "We tried to make the case that the regulations are flawed conceptually and practically. By abandoning the traditional reliance on patient consent before releasing information, the regulations open up medical records to all sorts of abuses."

The proposed rules do not require patient consent prior to releasing information for purposes related to treatment, payment, and broadly defined health care operations. Any government agency could obtain a patient’s medical records without his or her consent for purposes of policy, planning, regulation, or management and enter the information in databases, noted Appelbaum.

"This provision would grant governmental entities at all levels unprecedented power to collect the most personal medical information for virtually any purpose by merely asserting they had a need for it. The rules do not appear to significantly limit the use of this information once it is collected."

Harding commented, "In this age of cyberspace and health infrastructures, it is very difficult for patients to recall their medical information once it is out there."

The proposed rules also do not require patient consent for so-called "national priority activities," which includes research, judicial and administrative proceedings, and law enforcement activities.

"We find it very troubling that providers can disclose a patient’s medical records without his or her consent to attorneys who claim that the information is relevant to litigation. We recommended to Jennings and Claxton that any such attorney’s request be reviewed by a judge," said Appelbaum.

Harding said, "This exception for attorneys would turn psychiatric care and courtroom proceedings on its head."

Law enforcement officers would also have access to medical records without patient consent under the proposed rules. APA leaders called for applying a "probable cause" standard to medical records so that officers would not have access to medical records or any other property without a search warrant, according to Appelbaum.

Another problem arising from the proposed rules is that psychotherapy notes would be exempted from disclosure requirements only if they are kept separate from the patient’s medical record, said Appelbaum.

"This is burdensome because most therapists keep psychotherapy notes in the patient’s chart and often with notes about other forms of psychiatric treatment," he observed.

Finally, Harding expressed APA’s concern at the meeting that states with weaker privacy protections would be allowed to retain them. "Many states could take advantage of this loophole in the rules without ever consulting their citizens."

Tasman remarked, "Jennings and Claxton were very receptive to our concerns and said they were committed to engaging in an ongoing dialogue with us."

APA will submit comments on the proposed rules published in the November 3 Federal Register. The Department of Health and Human Services (HHS) will review public comments before issuing the final rules by February 21 of next year. However, the rules will not be enforced until 2002.

In the meantime, Congress can enact legislation that would supercede the regulations. Many Congressional Republicans oppose a provision in the rules that would allow states to retain stronger state medical record privacy laws, according to Bruno.