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Medical Privacy Rules Ignore Public's Interest, Media's Role


Contacts: Ian Marquand, SPJ FOI Committee chairman, 406/542-4400 or ian@kpax.com

INDIANAPOLIS - New federal rules protecting the privacy of individuals' medical records say nothing about the value of providing information to the public, according to the Society of Professional Journalists.

The rules also do little to ease media concerns that even routine information on patients will become unavailable, even when the public has a legitimate right to know information because of safety or health concerns.

SPJ believes the rules do not recognize the public's need to be informed about health impacts from crimes or accidents that must be reported to government health, law enforcement or regulatory agencies.

The rules were announced Wednesday by the U.S. Department of Health and Human Services following a four-year process that brought more than 52,000 comments from the public. They will become effective in 2002.

SPJ was among the journalism organizations that submitted comments after the draft rules were released in the fall of 1999.

Among SPJ's concerns were that the draft rules prohibited virtually all releases of patient information without patient consent and that harsh penalties for unauthorized releases would make hospitals withhold information, even when such releases are allowed, as in cases of public health emergencies.

"We're very concerned that the new rules are far too vague," said Ray Marcano, SPJ president and regional editor at the Dayton (Ohio) Daily News.

"Unfortunately, many officials will look for loopholes in an effort to shield information from the public instead of providing it openly without clear rules that ensure the most basic information is made public. We fear that instead, some will point to these vague rules and use them to thereby limit the public's right to know."

SPJ had suggested that the final rules include provisions allowing for the release of "public record information" about patients. "Public record information" would include general information on certain categories of patients, including:

people in police custody or who are transported to the hospital by public safety entities.
people injured in violent crimes or accidents that are reportable to federal or other public agencies.
public officials who are hospitalized.

The Society's suggestions did not make it into the final draft of the rules, which now must be reviewed by Congress.

"I'm disappointed that our suggestions were rejected," said Ian Marquand, the Society's Freedom of Information Committee chairman. "Our suggestions were well-reasoned and were consistent with accepted current practices."

The final rules do allow for unauthorized disclosure of patient information for "national priority activities" such as "emergency circumstances" or "public health." But in SPJ's view, those guidelines might be inadequate to insure that citizens get the information they need in a timely way through the media.

"Our concern is that hospital officials will look at those vague guidelines, see they're not mandatory, then look at the very specific and stiff criminal penalties for unauthorized disclosures and decide to play it safe," said Marquand, special projects coordinator for the Montana Television Network.

"When there's a big car pile-up on the freeway or a riot downtown or a toxic spill at a train derailment, people want to know how many were hurt and how badly," Marquand continued. "They turn to us in the media for that information. Now, we have to hope that the victims of those kinds of incidents give their permission for their condition to be released. Otherwise, I'm not convinced we'll get it under these rules."

Even when the rules allow disclosures, they also acknowledge that doctors and hospitals sometimes will have to make judgments based on their own policies. Marquand encouraged journalists to talk about the new rules with public and private health authorities in their communities.

"We, as journalists, need to make sure those people understand the importance of informing the public and that their policies reflect that importance," he said.

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