Privacy bill bogs down over abortion, right to sue
Privacy bill bogs down over abortion, right to sue
With Congress now back in session, medical records privacy legislation seems likely to bog down over two contentious partisan issues: abortion rights and a patient's right to sue.
With the Aug. 21 deadline for legislation long passed, the Department of Health and Human Services (HHS) is engaged in drafting privacy regulations dealing with the electronic transfer of medical information. But key senators remain committed to pushing some sort of legislative compromise through before the end of the current session, says Joe Karpinski, communications director for the Senate Health and Education Committee, chaired by Sen. Jim Jeffords (R-VT), sponsor of the most prominent privacy bill.
Before the August recess, the committee had managed to whittle down 35 potential amendments to the Jeffords bill to seven or eight, Karpinski says. Most of the remaining amendments are of minor concern, but two seriously threaten the chances of winning bipartisan support for privacy legislation. Because of those amendments, a proposed markup was tabled until after the recess.
The first issue threatening the chances of privacy legislation is the right of juveniles to control access to their medical records. A pending amendment from Sen. Edward Kennedy (D-MA) states if a state gives a minor independent access to some medical service, then the minor would control the record of that service.
"One thing that some states give minors independent access to is reproductive benefit services," Karpinski says. "And that has created a problem between pro-life and pro-choice forces."
Currently, the Jeffords bill is silent on the issue of minors’ rights, leaving the issue entirely in the hands of state government, he adds.
The second contentious issue is the right of patients to sue providers. Currently, the Jeffords bill imposes criminal penalties if its privacy provisions are violated, and it preserves the right of private individuals to file lawsuits. Partisan issues related to the private right of action include whether there should be a cap on damages, as the Jeffords bill stipulates, whether punitive damages are allowed, and what the conditions must be met in order for a patient to sue.
According to Karpinski, Congress must resolve both issues in a bipartisan fashion if privacy legislation is to pass. "The reason for that is that this legislation is not on everyone's front burner," he says. "Citizens are not calling up their senators' offices and telling them to pass the bill. It's not showing up in polling, and 60 Minutes isn't doing shows about it. If you bring a bill to the floor that doesn't have some momentum of its own and has a partisan taint to it, you just can't get it passed."
Karpinski says the real deadline for passing privacy legislation is the end of the legislative year. Congress is scheduled to adjourn Oct. 29, though the session could drag into November.
"At that point, if there’s a reasonable expectation that we'll be able to pass legislation, I think everyone will stand back and let Congress take its shot," he says. "If not, we’ll have to decide. Do we let HHS go ahead with its regulations, or do we push back the timetable? And if we push it back, how far? Three months, six months, two years? Who knows what the winning guess will be."
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