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Deal Reached on Privacy Bill


May 15, 2008

Sen. Patrick Leahy (D-Vt.) has reached agreement with sponsors of the proposed Wired for Health Care Quality Act that could result in the long-stalled health care information technology bill moving through the Senate. The agreement also would substantially change the HIPAA privacy rule.

The agreement would strengthen protection of health data handled by business associates who are not covered entities under the privacy rule and further address continued breaches of electronic health information.

Sens. Edward Kennedy (D-Mass.) and Michael Enzi (R-Wyo.) sponsor the legislation, which has been introduced during the last two sessions of Congress. But concerns from privacy advocates and some senators--particularly Leahy, chair of the Judiciary Committee--stymied progress.

Under the agreement, provisions will be added to the Wired Act to:

* Eliminate a loophole in the bill that would have allowed operators of personal health records to provide sensitive information to virtually anyone under the HIPAA privacy rule;

* Eliminate loopholes in the privacy rule that would have permitted certain providers to use or disclose patient records for marketing purposes;

* Direct the Secretary of Health and Human Services to submit a report to Congress containing recommendations for privacy and security protections for personal health records;

* Provide a broad right of access to inspect records held in electronic form and receive an electronic copy of the record. Under the privacy rule, individuals have a right to access their medical records, but there is no clear right to an electronic copy of the records;

* Strengthen congressional oversight over federal health compliance and enforcement of the privacy rule;

* Direct the Secretary of Health and Human Services to ensure more public transparency and stronger privacy obligations on providers who contract and outsource patient records to third-party vendors, including any vendors operating in a foreign country; and

* Direct the Secretary of Health and Human Services to provide for the development of standards and protections to ensure that consumers are notified when their sensitive electronic personal health information has been compromised.

Kennedy, chair of the Health, Education, Labor and Pensions Committee, also has committed to work with Leahy on a Judiciary Committee hearing on health privacy issues to be held in June.

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