WASHINGTON, May 6 /PRNewswire-USNewswire/ -- "While authors of the
recently passed Genetic Information Nondiscrimination Act of 2008 (H.R.
493) had good intentions, the bill inadvertently legalizes the sharing of
genetic information without patient consent," says Sue Blevins, president
of the Institute for Health Freedom (IHF). "It does so by applying HIPAA
regulations to genetic data."
Blevins points out, "HIPAA regulations permit data sharing without
patient consent in connection with treatment, payment, and oversight of the
health- care system ('health-care operations'). Thus, by passing a bill
that says HIPAA regulations apply to genetic information, Congress
unintentionally legalized the sharing of information among many health-care
'covered entities' without patient permission."
The bill passed the Senate late last month, a year after the House
approved its own version. Differences between the two were resolved May 1,
and the final bill has been sent to President Bush.
In a letter published in the Baltimore Sun regarding the Senate's vote
on the anti-discrimination bill, Janis G. Chester, M.D., president of the
American Association of Practicing Psychiatrists, stressed: "...A person's
genetic test results, and all of his or her medical data, should not be
available to anyone without the patient's consent. One's employer should
not even know he or she has had testing done, let alone know the results.
The sad fact is that the regulations under the Health Insurance Portability
and Accountability Act [HIPAA], which were intended to extend patient
privacy as we moved from a paper-based system of medical records to a
digital system, are a sham. HIPAA allows the routine release of personal
health information without patient consent or knowledge, and even over a
patient's objection..."
Amending HIPAA Privacy Regulations Without Public Input
H.R. 493 forbids the "use or disclosure" of genetic information for
underwriting purposes by insurers under HIPAA regulations. But the bill
fails to give individuals the final say on whether their genetic data can
be shared for many other purposes permitted under the HIPAA rule. In fact,
it requires the [HHS] Secretary to amend the HIPAA regulations to cover
genetic information, so that genetic information "shall" be treated as
health information. And the bill says that the revised HIPAA rule "shall be
effective upon publication [in the Federal Register], without opportunity
for any prior public comment, but may be revised, consistent with this
section, after opportunity for public comment." (Emphasis added.) In
effect, this means:
-- HHS must publish a notice in the Federal Register to amend the HIPAA
regulations without an opportunity for public comment.
-- Once the amended HIPAA regulations take effect, then the public may
comment on the revised rule.
-- At that point, the rule may (or may not) be revised again.
-- In the meantime, genetic information will be defined legally as "health
information" under HIPAA regulations, which permit the sharing of
health information for many purposes without patient consent.
Health Plans Permitted to Obtain Genetic Data for Making Payment
Determinations
The bill amends the Employee Retirement Income Security Act of 1974
(ERISA), the Public Health Service Act (PHSA), and the Internal Revenue
Code to "prohibit a group health plan from adjusting premium or
contribution amounts for a group on the basis of genetic information."
Also, group health plans are prohibited from requesting or requiring
individuals or their family members from undergoing genetic testing.
However, the legislation says that such prohibition may not "limit the
authority of a health care professional to request an individual to undergo
a genetic test" or "preclude a group health plan from obtaining and using
the results of a genetic test in making a determination regarding payment."
In other words, insurers cannot establish insurance rates on the basis of
genetics, but they can determine payment amounts on that basis.
Do Exceptions Nullify Genetic Privacy Guarantees?
H.R. 493 also makes it illegal for employers to discriminate based on
employees' genetic information. And it supposedly makes it unlawful for
employers to acquire employees' genetic information. The bill states, "It
shall be an unlawful employment practice for an employer to request,
require, or purchase genetic information with respect to an employee or a
family member of the employee except..." It then goes on to list six
exceptions. For example, an exception to the employer nondiscrimination
clause includes: "Where an employer inadvertently requests or requires
family medical history of the employee or family member of the employee."
(Emphasis added.)
History of Genetic Data Abuse
The legislation includes these findings (among others) regarding abuse
of genetic information:
-- "The early science of genetics became the basis of State laws that
provided for the sterilization of persons having presumed genetic
'defects' such as mental retardation, mental disease, epilepsy,
blindness, and hearing loss, among other conditions. The first
sterilization law was enacted in the State of Indiana in 1907. By 1981,
a majority of States adopted sterilization laws to 'correct' apparent
genetic traits or tendencies. Many of these State laws have since been
repealed, and many have been modified to include essential
constitutional requirements of due process and equal protection.
However, the current explosion in the science of genetics, and the
history of sterilization laws by the States based on early genetic
science, compels Congressional action in this area."
-- "Although genes are facially neutral markers, many genetic conditions
and disorders are associated with particular racial and ethnic groups
and gender. Because some genetic traits are most prevalent in
particular groups, members of a particular group may be stigmatized or
discriminated against as a result of that genetic information. This
form of discrimination was evident in the 1970s, which saw the advent
of programs to screen and identify carriers of sickle cell anemia, a
disease which afflicts African-Americans. Once again, State
legislatures began to enact discriminatory laws in [this] area, and in
the early 1970s began mandating genetic screening of all African
Americans for sickle cell anemia, leading to discrimination and
unnecessary fear. To alleviate some of this stigma, Congress in 1972
passed the National Sickle Cell Anemia Control Act, which withholds
Federal funding from States unless sickle cell testing is voluntary."
(Emphasis added.)
-- "Congress has been informed of examples of genetic discrimination in
the workplace. These include the use of pre-employment genetic
screening at Lawrence Berkeley Laboratory, which led to a court
decision in favor of the employees in [the] case Norman-Bloodsaw v.
Lawrence Berkeley Laboratory (135 F.3d 1260, 1269 (9th Cir. 1998)).
Congress clearly has a compelling public interest in relieving the fear
of discrimination and in prohibiting its actual practice in employment
and health insurance."
Consent, Ownership and Genetic-Privacy Rights Still Needed
If Congress and President Bush want to ensure that unethical uses of
genetic information are not repeated in years to come, they should pass a
law that states clearly:
-- Genetic testing is voluntary.
-- Individuals own their genetic information.
-- Genetic information may not be shared without the individual's consent.
"Unfortunately, the recently passed Genetic Information
Nondiscrimination Act of 2008 falls short of upholding the ethics of
consent, ownership and genetic privacy," Blevins said.
The Institute for Health Freedom (IHF) is a Washington, D.C.-based
nonprofit think tank whose mission is to bring the issues of personal
health freedom to the forefront of the American health-policy debate. IHF
monitors and reports on national policies that affect citizens' freedom to
choose their health-care treatments and providers, and to maintain their
health privacy- including genetic privacy.
Sources:
-- "Genetic Information Nondiscrimination Act of 2008." To read the
complete bill, visit the congressional legislative database and search
for bill number H.R. 493: http://thomas.loc.gov
-- "Medical Privacy Still Isn't Protected," Baltimore Sun, letter to the
editor by Janis G. Chester, president of the American Association of
Practicing Psychiatrists, May 1, 2008:
http://www.baltimoresun.com/news/opinion/letters/bal-
ed.le.letters01m0may01,0,6346945.story
-- "The Final Federal Medical Privacy Rule: The Definitive Guide,"
Institute for Health Freedom, March 6, 2003:
http://www.forhealthfreedom.org/Publications/Privacy/Rule.html
SOURCE Institute for Health Freedom
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Related links:
http://www.forhealthfreedom.org
CONTACT:
Sue Blevins of Institute for Health Freedom,
+1-202-429-6610
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