Related Pages

Excerpts from the
Opening Statement of Sen. Bob Bennett
(transcribed from an audio recording)

People keep asking me, as a conservative Republican, who believes in states' rights, and states' preeminence, how come you now to be in favor of federal preemption. And I want to assure you as a committee that I am approaching this issue from a standpoint of political ideology, but out of my background as a manager.

And I have come to the conclusion from a straight managerial point of view the logical thing is to have federal preemption of state law. I think that it is vital. Most of us wrongly assume that our personal health information is already protected under federal law. As Sen. Kennedy has noted, it is not.

Federal law protects the confidentiality of our video rental records, and federal law ensures us access to information about ourselves, such as our credit history, but there is no current federal law which will protect the confidentiality of our medical information against unauthorized use, and ensure us access to that same sensitive information about us. It is ironic that other people can see that information, but we ourselves cannot, in many situations.

Delivery of health care is a matter of interstate commerce. No longer are one's health care needs met within state boundaries. You consult specialists in other states. We are engaged in telemedicine. And health system services very often straddle state lines. Every American should have the assurance that their medical records are being treated with the same appropriate safeguards and dignity that they deserve.

This patchwork of state laws is confusing, contradictory, and complex. Individuals, providers, insurers, health plans, and others, are forced to deal with this maze of state laws, which fail in many cases to provide the needed and desired protections. A federal floor provides only temporary relief from this maze of state laws. Soon, some state will pass a new law that will once again create confusion and slow the advance of health care delivery and research. I see no compelling reason to pass medical records protection legislation, if there is not full and complete federal preemption. What would be the point. We would only find ourselves in a similar circumstance to the one in which we find ourselves today -- a patchwork of state laws.

Now, I believe that each individual should have the right and ability to sign an authorization form. Each of us should have a better understanding as to how and what medical -- and for what medical information is being used. I not believe that we need to -- as many of seem today -- sign authorizing forms each and every time we receive care from a different doctor or nurse. I believe we should not be forced to agree to other activity outside of treatment, payment of health care operations, in order to receive treatment. When someone wants to use our medical information for marketing purposes, we should have the ability to say 'no thank you'.

We should have the right to revoke our authorization. In doing so, realize, that with such a revocation there are consequences. And that we cannot expect our health care providers to provide us with the treatment when they have only access to a portion of our records. To do so puts our health at risk, and places our care givers in a precarious situation where they cannot hope to render the appropriate care.

Finally, I would like to address the issue of law enforcement. There are times when in the course of their duty, law enforcement officials need access to medical records. I believe it is in the best interest of the public to provide them with this access. But I believe we are better served when such requests are reviewed and authorized through an appropriate process. My legislation would require either a warrant, or a subpoena, prior to law enforcement officials having access to anyone's medical records. I am sure that law enforcement officials understand that there cannot be two standards when it comes to medical records.

In order for individuals to have confidence in the system, there must be appropriate checks within the system in order to ensure that all the information is required and that a legitimate need has been demonstrated. I understand the unique nature of the law enforcement officials and believe we can come to a reasonable compromise regarding the privacy concerns of the individual, and the legitimate needs of the law enforcement community.

Mr. Chairman, I look forward to working with you and the other members of this Committee in crafting legislation which provides provides all Americans with greater access to their medical information, as well as greater protection."

Excerpts from the
Opening Statement of Sen. Leahy
(transcribed from an audio recording)

Thank you, Mr. Chairman. I was glad to also have Sen. Bennett. I have noticed from the time we came to Senator's strong interest on this, and I enjoyed serving with him in the years he has been here.

These issues are not new. I know in 1993 when I chaired the Judiciary Committee's Subcommittee on Technology and the Law, I convened hearings on the privacy of medical records and new technology. Sen. Kennedy will remember that well because he was valuable help with that. We learned learned a lot about how technology is overtaking the privacy rights. As an information age enthusiast, it became clear to me that technology can be a powerful tool for protecting privacy rights, or a powerful agent in eroding it.

... In 1996 during consideration of the Kassenbaum Kennedy health insurance portability bill, Sen. Bennett and I worked very closely to include medical privacy protections in that law. ...

At a time when our leading computer chip and software companies are building secret identifiers into their products that trace our moves in cyberspace without consent, we have to ask ourselves ourselves whether Congress can stand by and see the potential erosion of the public's medical privacy rights.

The ability to compile, store, and cross-reference personal health information has made our intimate health history a valuable commodity. In 1996 alone, the health care industry alone spent an estimated ten to fifteen billion dollars just on new technology just to store and compile this material. Mr. Chairman, you may remember the recent article from the Wall Street Journal I cited in your Vermont field hearing. It had ____ about a company that is seeking the motherlode of health data mining. This company wants to get health data on millions of Americans, of all states, and then sell it to the highest bidder.

Today, there are no laws constraining the creation of large data bases with sensitive personally identifiable information on any of us. Information on all of us on our health private is like gold to these so called data miners. We have to make sure that the grass roots stakes that our constituents have in these decisions is not overrun by high powered well funded lobbying efforts of these special interests which stand to make millions if they can just delve in and get Senator Collins',  and Senator Hutchinson's, Senator Frist's, Senator Jeffords', and Senator Kennedy's, Senator Murray's, Senator Bennett's, Senator Leahy's medical records, and everybody else's.

We must know that threats to privacy rise to the point that the only way a person can ensure confidentiality is to avoid seeking medical treatment in the first place. And there are some people who may come to that. If they are afraid that they cannot protect their privacy otherwise, they might not seek the medical care they need.

Now, Mr. Chairman, you are trying to work to bridge the gap between the various legislative efforts that address this issue. And I look forward to working with you. There are similarities between the bills that Senators Kennedy, Daschle, Dorgan and I introduced as 573, MIPSA, and the bill that you and Senator Dodd introduced, and the legislation that Senator Bennett and Senator Mack introduced yesterday.

There is one area where I heard a red herring by some of the special interests in the question of health research. They use this charge as a red herring to try to kill the passage of any medical privacy law, or at least to make strong protections for health consumers. But we all agree, all of us, that once medical information is identified for research or other purpose, it falls out of the scope of our legislation. The bill Senator Kennedy and I introduced keeps in place the current review ___ by health research by institutions using federal funding, such as NIH, and should be the best health research institution in the world. But following their privacy methods, I don't see how that would any way stifle research.

Other issues may not be so simple to resolve until we get to the Senate floor, such as preemption of state law. Here again, we all agree that weaker health privacy law should be preempted. But the legislation Senator Kennedy and I introduced does not preempt any state or federal law or regulation that offers greater privacy safeguards. ...

We have to understand that there is a whole law and technology that, no matter how current we feel we are, we cannot predict. And the best minds do not know where the technology will be ten years from now. We have differences on the issue of preemption ...

I believe we can take these various bills, and work together and craft a good piece of legislation which does not run roughshod over the states, but does protect individual consumers health care. If we don't, if we don't, I guarantee you, we will have millions of Americans who will not seek health care because of what it might do to their privacy.