Discussions over taxing cosmetic medical procedures such as Botox injections led to a new law
that limits the state Department of Revenue's ability to audit personal medical information, and has set in motion a process to further strengthen medical privacy safeguards.
Rep. Dianne Primavera, a cancer survivor and Democratic chairwoman of the state House Public Health Care & Human Services Committee, became concerned the issue would lead to Department of Revenue auditors combing through patients' personal health records and making medical determinations based on their findings.
Primavera received help from the Austin, Texas-based Patient Privacy Rights Foundation
on formulating a bill. She recruited a conservative Republican and a liberal Democrat to sponsor it in the state Senate. Gov. John Hickenlooper signed the bill May 31, and it took effect immediately.
The law forbids the Department of Revenue from accessing or distributing an individual’s personal medical record without their permission and creates a “Government Access to Personal Medical Information” task force. Hickenlooper will appoint panel members who will meet over the summer to study “why and to what extent state and local government departments or agencies have access to, and the ability to use or distribute, an individual’s personal medical information or medical record with and without the individual’s consent,” according to the statute.
The panel will present its findings and recommendations to the legislature by Nov. 1.
Among the topics to be discussed will be the inadequacy of privacy protections included in the Health Insurance Portability and Accountability Act of 1996, or HIPAA
“This starts the broader discussion about how there are lots of ways organizations and entities can access people’s private information, and that HIPAA doesn’t provide the protection people think it does,” Primavera said. “I just think people assume HIPAA protects them and it doesn’t really protect them.”
Anne McGihon, an attorney and former legislator who once held the health committee chairwoman’s post now held by Primavera, helped lobby for the bill and said its original purpose was to clarify existing legislation.
“We thought the statute was pretty clear—all prescription drugs and prostheses are tax exempt and the Department of Revenue doesn’t get to make a distinction,” McGihon said, adding that Botox has 19 therapeutic uses, including treatment for Bell’s palsy and migraines.
“We then became aware that there are so many ways that the state accesses people’s medical records as multiple departments said ‘We need it for this, we need it for that,’” she said. “What the hell does a revenue officer know about a person’s medical history and what they need?”
McGihon added that bill supporters worked with the Department of Revenue to “make sure the language of the bill was something they could live with.”
Department of Revenue spokeswoman Daria Serna, however, doubted the new law would make a difference.
“The new law will not impact the operations of the Department of Revenue's Division of Taxation,” Serna said. “The Division of Taxation has always complied with health privacy laws and will continue to do so. Furthermore, under controlling state law and regulations, medical necessity is not a consideration as to whether or not an item should be taxed.”
Neither the Colorado Hospital Association nor the Colorado Medical Society took a position on the bill. Both said they were “monitoring” its progress.
“It wasn’t a priority for them, and they’re careful where they put their legislative effort,” McGihon said, adding that the bill was more of an issue from the patient side than the provider side.
While the clarification of record-access limits and the establishment of the task force were important, both McGihon and Primavera said that the legislation’s bipartisan support is also worthy of note.
“Voters tell us they really want us to find common ground,” Primavera said. “I think people’s need for privacy is something we can all agree on.”Follow Andis Robeznieks on Twitter: @MHARobeznieks