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New Privacy Rules Give Marketers Wide Access to Patient Information

ACP-ASIM Identifies Major Flaws In Marketing Provisions

(Washington, DC): The marketing provisions contained in the Health Insurance Portability and Accountability Act's (HIPAA) final privacy rule condones and even encourages widespread use of protected health information for marketing purposes, according to testimony presented by William J. Hall, MD, president of the American College of Physicians - American Society of Internal Medicine (ACP-ASIM) before the Department of Health and Human Services' National Committee on Vital Health Statistics.

"The final rule has more exceptions than it does protections. The wide range of exceptions for health plan operations include face-to-face communications that would extend to third party telemarketers or door-to-door salesman," stated Dr Hall. "Even worse, the products do not have to be health care related."

ACP-ASIM recommends that the use of protected health information for marketing purposes be prohibited. At the very least, for any marketing contact to occur, patients should be given the opportunity to agree to, prohibit, or restrict the disclosures in advance of the communication.

"Patients do not expect their private medical information to be used for marketing purposes," stated Dr. Hall. "The federal regulations that were intended to protect a patient's private health information inadvertently create marketing loopholes that may lead to even greater invasions of patient privacy than we see currently."

The final rule also exempts communications that relate to items or services of "nominal value." This portion of the rule is one of the most vague and ambiguous. This exception also applies to any product or service whether it is a health care-related item or not. Another exemption requires an ill-defined "opt out" procedure be made available to consumers only after their information has been shared with third parties and they receive solicitations.

"Patients must have the right to restrict sensitive information about their medical conditions before the event occurs, not after," stated Dr. Hall.

Other requirements attach to the communication if a covered entity or third party uses or discloses protected health information to target communications based on health status or condition. One prerequisite is that a communication "might be" beneficial to the patient targeted. A second prerequisite is that the communication explains why the patient has been targeted and how the product or service would benefit the patient.

"The rule's provisions require that marketers violate a patient's right to limit knowledge about where they've received treatment and what their medical condition is," stated Dr. Hall. "This is the fundamental protection the rule was designed to provide."

ACP-ASIM is the nation's largest medical specialty organization and the second largest physician group. Membership encompasses more than 115,000 internal medicine physicians and medical students.

Dr.Hall's testimony can now be viewed online.

Jennifer Whalen, (202) 261-4575, jennw@acponline.org

Page updated: 11-04-03

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