Standards for Privacy of Individually Identifiable Health Information. Final Privacy Rule Preamble.. C. Need for the Final Rule

12/28/2000

The need for a national health information privacy framework is described in detail in Section I of the preamble above. In short, privacy is a necessary foundation for delivery of high quality health care -- the entire health care system is built upon the willingness of individuals to share the most intimate details of their lives with their health care providers. At the same time, there is increasing public concern about loss of privacy generally, and health privacy in particular. The growing use of interconnected electronic media for business and personal activities, our increasing ability to know an individual's genetic make-up, and the increasing complexity of the health care system each bring the potential for tremendous benefits to individuals and society, but each also brings new potential for invasions of our privacy.

Concerns about the lack of attention to information privacy in the health care industry are not merely theoretical. Section I of the preamble, above, lists numerous examples of the kinds of deliberate or accidental privacy violations that call for a national legal framework of health privacy protections. Disclosure of health information about an individual can have significant implications well beyond the physical health of that person, including the loss of a job, alienation of family and friends, the loss of health insurance, and public humiliation. The answer to these concerns is not for consumers to withdraw from the health care system, but for society to establish a clear national legal framework for privacy.

This section adds to the discussion in Section I, above, a discussion of the market failures inherent in the current system which create additional and compelling reasons to establish national health information privacy standards. Market failures will arise to the extent that privacy is less well protected than the parties would have agreed to, if they were fully informed and had the ability to monitor and enforce contracts. The chief market failures with respect to privacy of health information concern information, negotiation, and enforcement costs between the entity and the individual. The information costs arise because of the information asymmetry between the company and the patient -- the company typically knows far more than the patient about how the protected health information will be used by that company. A health care provider or plan, for instance, knows many details about how protected health information may be generated, combined with other databases, or sold to third parties.

Absent this regulation, patients face at least two layers of cost in learning about how their information is used. First, as with many aspects of health care, patients face the challenge of trying to understand technical medical terminology and practices. A patient generally will have difficulty understanding medical records and the implications of transferring health information about them to a third party. Second, in the absence of consistent national rules, patients may face significant costs in trying to learn and understand the nature of a company's privacy policies.

The costs of learning about companies' policies are magnified by the difficulty patients face in detecting whether companies, in fact, are complying with those policies. Patients might try to adopt strategies for monitoring whether companies have complied with their announced policies. These sorts of strategies, however, are both costly (in time and effort) and likely to be ineffective. In addition, modern health care often requires protected health information to flow legitimately among multiple entities for purposes of treatment, payment, health care operations, and other necessary uses. Even if the patient could identify the provider whose data ultimately leaked, the patient could not easily tell which of those multiple entities had impermissibly transferred her information. Therefore, the cost and ineffectiveness of monitoring leads to less than optimal protection of individually identifiable health information.

The incentives facing a company that acquires individually identifiable health information also discourage privacy protection. A company gains the full benefit of using such information, including its own marketing efforts or its ability to sell the information to third parties. The company, however, does not suffer the losses from disclosure of protected health information; the patient does. Because of imperfect monitoring, customers often will not learn of, and thus not be able to take efficient action to prevent uses or disclosures of sensitive information. Because the company internalizes the gains from using the information, but does not bear a significant share, if any, of the cost to patients (in terms of lost privacy), it will have a systematic incentive to over-use individually identifiable health information. In market failure terms, companies will have an incentive to use individually identifiable health information where the patient would not have freely agreed to such use.

These difficulties are exacerbated by the third-party nature of many health insurance and payment systems. Even where individuals would wish to bargain for privacy, they may lack the legal standing to do so. For instance, employers often negotiate the terms of health plans with insurers. The employee may have no voice in the privacy or other terms of the plan, facing a take-it-or-leave-it choice of whether to be covered by insurance. The current system leads to significant market failures in bargaining privacy protection. Many privacy-protective agreements that patients would wish to make, absent barriers to bargaining, will not be reached.

The economic arguments become more compelling as the medical system shifts from predominantly paper to predominantly electronic records. Rapid changes in information technology should result in increased market failures in the markets for individually identifiable health information. Improvements in computers and networking mean that the costs of gathering, analyzing, and disseminating electronic data are plunging. Market forces are leading many health care providers and health plans to shift from paper to electronic records, due both to lower cost and the increased functionality provided by having information in electronic form. These market changes will be accelerated by the administrative simplification implemented by the other regulations promulgated under HIPAA. A chief goal of administrative simplification, in fact, is to create a more efficient flow of medical information, where appropriate. This privacy regulation is an integral part of the overall effort of administrative simplification; it creates a framework for more efficient flows for certain purposes, including treatment and payment, while restricting flows in other circumstances except where appropriate institutional safeguards exist.

If the medical system shifts predominantly to electronic records in the near future, accompanying privacy rules will become more critical to prevent unanticipated, inappropriate, or unnecessary uses or disclosures of individually identifiable health information without patient consent and without effective institutional controls against further dissemination. In terms of the market failure, it will become more difficult for patients to know how their health provider or health plan is using health information about them. It will become more difficult to monitor the subsequent flows of individually identifiable health information, as the number of electronic flows and possible points of leakage both increase. Similarly, the costs and difficulties of bargaining to get the patients' desired level of use will likely rise due to the greater number and types of entities that receive protected health information.

As the benefits section, below, discusses in more detail, the protection of privacy and correcting the market failure also have practical implications. Where patients are concerned about lack of privacy protections, they might fail to get medical treatment that they would otherwise seek. This failure to get treatment may be especially likely for certain conditions, including mental health, and HIV. Similarly, patients who are concerned about lack of privacy protections may report health information inaccurately to their providers when they do seek treatment. For instance, they might decide not to mention that they are taking prescription drugs that indicate that they have an embarrassing condition. These inaccurate reports may lead to mis-diagnosis and less-than-optimal treatment, including inappropriate additional medications. In short, the lack of privacy safeguards can lead to efficiency losses in the form of foregone or inappropriate treatment.

In summarizing the economic arguments supporting the need for this regulation, the discussion here has emphasized the market failures that will be addressed by this regulation. These arguments become considerably stronger with the shift from predominantly paper to predominantly electronic records. As discussed in the benefits section below, the proposed privacy protections may prevent or reduce the risk of unfair treatment or discrimination against vulnerable categories of persons, such as those who are HIV positive, and thereby, foster better health. The proposed regulation may also help educate providers, health plans, and the general public about how protected health information is used. This education, in turn, may lead to better information practices in the future.