Proposed legislation in Wisconsin would relax certain state patient privacy laws to match those of the 1996 federal law governing disclosure of health information.
The draft bill has support of Wisconsin Gov. Jim Doyle and adopts recommendations made in December 2007 by an advisory board charged in 2005 with creating a plan for adopting electronic medical records throughout Wisconsin within five years.
One Republican and two Democratic state representatives are expected to introduce the bill at the request of Wisconsin's Department of Health and Family Services and the Governor's eHealth Care Quality and Patient Safety Board, according to an e-mail seeking co-sponsors from by Wisconsin Reps. Terry Moulton, a Republican; and Kim Hixon and Chuck Benedict, both Democrats. Kevin Hayden, Wisconsin's Health and Family Services Secretary, was chairman of the 20-member board, which included health system executives, public officials and representatives from healthcare technology companies, according to the board's Web site.
"As the healthcare industry moves toward greater use of technology through electronic medical records, it is important to remove some of the barriers that are prohibiting the exchange of health information that is necessary to improve the quality, cost and safety of healthcare," the lawmakers' e-mail said.
Under the proposed legislation, doctors would no longer need patients' informed consent to release records to any provider with a need to know for treatment of mental illness, substance abuse or developmental disabilities. Under existing law, patients' consent is required except in cases of medical emergency or disclosure to a related health provider.
The draft bill would also allow doctors to provide oral disclosure to family and friends involved in a patient's care. As it stands under Wisconsin law, patients must first give consent. If enacted, physicians would have greater discretion to use professional judgment when making disclosures if the patient is not physically or cognitively able to give consent.
Finally, those who receive patients' information cannot re-disclose records under Wisconsin's law. Under the proposed legislation, certain providers, as defined by the Health Insurance Portability and Accountability Act, would be allowed to re-disclose information. Others would be allowed to re-disclose if they have received written authorization from a patient to do so, a court order requires it or re-disclosure is limited to the purpose for which the information was initially obtained.
Jim Pyles, a Washington attorney with Powers Pyles Sutter & Verville, said the proposal threatens to leave Wisconsin's residents with privacy protections considered to be the minimum guarantee. "They're essentially doing what the tornadoes did in Tennessee, they're wiping out all the privacy protections above the floor," said Pyles. For patients, particularly those in need of mental healthcare, medical privacy can be critical to seeking help, he said. Fewer protections could prevent people form seeking care, he said. "You won't get more information, you'll get less." Meanwhile, providers typically consider patients' informed consent as an ethical obligation, he said.
Ron Honberg, national director of policy and legal affairs for the National Alliance on Mental Illness, said the impact from such relaxed privacy protection depends on how broadly statutes allow disclosures. Informed consent can slow or delay treatment when rules create barriers to coordinating care among providers, he said. Statutes can improve care by allowing greater communication among providers for treatment. "The devil is in the detail," he said.
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