While these regulations are an important first step, there are significant concerns about the proposed regulations’ adequacy. There are several issues that, if unchanged, could have a potentially damaging impact on medical records confidentiality. Unless these inadequacies are remedied, these regulations could have a chilling effect on the doctor-patient relationship throughout medicine, and especially within psychiatric practice.

On November 5 I joined other APA leaders for a one and a half hour meeting with Chris Jennings, President Clinton’s deputy assistant for health policy, and Gary Claxton, the deputy assistant secretary of the Department of Health and Human Services who drafted the proposed regulations. We had a productive meeting and outlined our concerns and areas of agreement with the proposed regulations. The administration, speaking through Mr. Jennings and Mr. Claxton, indicated its commitment to an ongoing dialogue with APA to help resolve areas of disagreement.

In keeping with our bedrock belief that informed patient consent is essential and the cornerstone of the doctor-patient relationship, APA will continue to advocate for additional protections under the proposed regulations. Our position is also in keeping with the U.S. Supreme Court decision in Jaffee v. Redmond to allow additional needed protections for the psychotherapist-patient relationship.

We know that lawmakers often overlook the fact that confidentiality in the doctor-patient relationship is an essential element for high-quality health care. Some patients may refrain from seeking medical care or drop out of treatment in order to avoid any risk of disclosure. Others may not provide the full information necessary for successful treatment. We must avoid these situations for the good of the public health of our citizens.

Our analysis of the proposed medical records privacy regulation reveals the need for additional protections to ensure the long-term privacy concerns we have for our patients and for our profession. We are recommending a number of changes including the following:

• Patients should be able to choose, with informed consent, who will see their medical records. A key flaw in the present proposal is that patient consent is not the basis for use and disclosure of medical records for treatment, payment, broadly defined business "operations" purposes, and a variety of other uses. This is a significant change from present standards and an impediment to doctors’ efforts to provide the best possible care.

• The administration ignores the fact that these regulations will change current practice and give the federal good housekeeping seal of approval to practices that undermine privacy. Patient consent before use and disclosure of records is generally required today. We should be strengthening patients’ rights rather than missing this key opportunity to achieve meaningful patient privacy.

• Additional protections for sensitive mental health medical-record information are needed. The proposed regulations allow patients’ highly personal information about social and professional mental health functioning to be disclosed without consent for a broad array of business operations and other vaguely defined insurance purposes.

• There must be specific protections so that patients who participate in a managed care organization, or integrated health care delivery system, will have the certainty that other clinicians, who are not part of the patient’s treatment team, will not be able to have access to their medical records’ information.

• Additional protections are needed to prevent harmful supervisor access to employees’ medical records. No one wants his or her supervisor to have the ability to review personal medical information. There must be specific prohibitions on access by supervisory personnel to records and extension of protections to workers’ compensation records.

• All Americans must be free from unreasonable law enforcement personnel or judicial system access to their most personal medical records. The administration proposal allows such access without informed consent. The same constitutional Fourth Amendment rights that ensure freedom from unreasonable search and seizure should be the guide to protect patients’ medical records.

Since 1997, when the Clinton administration released an outline of the medical records privacy proposal, APA has been advocating before the Congress and in discussions with the administration for additional protections for patient privacy. APA strongly supports a number of provisions in the proposal, including the preservation of state laws that are more protective of privacy than the federal proposal.

APA will be working closely with the administration and members of Congress both to include critically needed protections in the President’s new plan and also to gain passage of more comprehensive congressional legislation to protect patient privacy. It is time to reverse the trend of eroding medical records privacy in the United States.