Have you heard the one about the psychologist, the obstetrician, and the dentist who walked into a congressional mark-up hearing, and voted against the ethics codes of their professional associations?
This actually occurred on Capitol Hill on June 15, at a meeting of the House Energy and Commerce Committee. This meeting was notable for its contentiousness, the utter cynicism of party politics, and a remarkably courageous performance by Congressman Ed Markey (D-7th-Mass.). The outcome of the hearing may well have a direct impact on our members, as the legislation under consideration could result in federal regulatory override of stronger state privacy laws and possibly even the Jaffe-Redmond privilege.
A number of members of the Association were in attendance at the hearing, at Markey's invitation, as a follow-up to the Association-NASW “Breakfast on Capitol Hill.” [See page 35]
Under consideration were two different versions, problematic in different ways, of an electronic health information bill (H.R. 4157). The action and the drama occurred as a result of an amendment Markey introduced that required privacy standards adopted by the secretary of the Department of Health and Human Services (HHS) to include a series of basic privacy protections drawn directly from our professional ethics codes, such as the right of patient consent. I wish all members of our Association could have seen the passion and knowledge with which the congressman spoke. It was the most eloquent address I have heard in many years.
Representative Markey presented his amendment stating that failing to include privacy protections “would be a privacy catastrophe for tens of millions of Americans.” He said that there were 84 million reasons to adopt the amendment because that was the number of Americans whose personal privacy had been compromised by electronic information systems since February of last year. He pointed out that consent for the disclosure of health information is required by the laws of Massachusetts, California, Texas, and many other states, and that 23 states have adopted privacy breach notice statutes.
The Republican response was weak, the logic almost nonexistent. Handicapped by the fact that he apparently had not read the amendment, Congressman Nathan Deal (R-10th-Ga.), chairman of the committee's Health Subcommittee, said that providing for written consent for the disclosure of health information would be too cumbersome. He read from a letter submitted during the comment period on the proposed Amended HIPAA Privacy Rule that complained that requiring consent would make it difficult to fill prescriptions or arrange in advance for surgical suites in hospitals. Markey responded that his amendment provides for consent to be obtained electronically and allows for consent to be inferred in a common-sense manner to fill prescriptions, arrange for surgical suites, or in the case of emergencies. Deal had no further response.
Markey also read a number of quotes from President Bush to the effect that he and all Americans should have their right to health information privacy protected. This led Democratic Congressman Charles Gonzalez of Texas to suggest dryly that the amendment be renamed the “Bush/Markey amendment.” The Republican side did not appear to be amused.
Markey then introduced into the record a “report card” issued by the House Government Reform Committee that showed that HHS (upon which H. R. 4157 relied for privacy protection) had received an “F” for its record of protecting the security of personal information. This was the same failing grade received by the Department of Veterans Affairs that recently had the largest theft of personal information from any federal agency.
Markey also introduced into the record a list of privacy principles from the ethics standards from many medical and professional associations, including the American Psychoanalytic Association, the American Psychiatric Association, the American Medical Association, the American Psychological Association, and the American Dental Association. In closing, he pointed out that, in voting for H. R. 4157 without the privacy safeguards contained in his amendment, the committee would be voting directly against the ethics codes of all the major health-care professional associations, and would be “mandating that health-care professionals violate their professional codes of ethics.”
This last statement enraged at least one of the health-care professionals on the Republican side. Charles Norwood (R-9th), from Georgia, a dentist, rose to pronounce Markey's statement “the biggest bunch of malarkey I have heard in this chamber,” and went on to say he had lived by his association's code of ethics for 35 years. Markey retorted that perhaps he ought to vote by them. Markey's comment was so sharp that I had an immediate association to the 1856 caning of Charles Sumner on the floor of the Senate. The chair, Joe Barton (R-6th-Tex.) had to intervene.
The obstetrician, Michael Burgess (R-26th-Tex.), and the psychologist, Timothy Murphy (R-18th-Penn.), did not speak, but voted against the amendment, despite the ethical codes of their professional associations.
Barton then went on to make the remarkable statement that he liked Markey's amendment very much and would like to vote for it, but to do so “would be unfair to my colleagues.” He went on to pledge his support to a separate privacy bill. This statement was
so unusual that it was highlighted in congressional newspapers.
Nonetheless, Barton's statement was a bald admission of party-line voting. And indeed, knowing they had the majority of seats (by four), many of the Republicans were not in the room for the debate, and would only file in to vote against the Democratic amendments. This was most notable in the case of Mary Bono (R-45th-Calif.). Clearly in the presence of bloc voting, only the interests of the party are served, rather than the interests of the people.
Predictably, in votes entirely along party lines, the Markey amendment did not pass, and two different versions of H.R. 4157 were approved. One will go to the House floor for enactment, and eventual reconciliation with the Senate version. What the Markey amendment achieved was to force the Republicans to take a public position in opposition to privacy, and to greatly raise the profile of the issue.
For some time, we have worked with Markey's staff on privacy and other issues. During a break at the hearing, I was able to talk with him directly about our Association, and the enormous source of energy and knowledge we have in our members. He and his staff are very interested in continuing our working relationship with his office. Our Association is fortunate to have such a champion for medical ethics and privacy. It gives us the opportunity to contribute significantly to try to achieve an IT bill that actually serves our patients, while protecting their privacy.