SANTA MONICA, CA – Consumer Watchdog warned today that an attempt to “harmonize” California’s Confidentiality of Medical Information Act with the federal Health Insurance Portability and Accountability Act could weaken privacy protections for patients.

The CMIA provides stronger privacy protections than HIPAA. In comments filed with the California Office of Health Information Integrity (CalOHII) the nonprofit, nonpartisan public interest group said:

“The goal of the harmonization effort should be to preserve the current relationship between federal and state law.  The effort must not weaken current California privacy protections.  Harmonization must follow the basic medical dictum, ‘First, do no harm.’”

“Unfortunately CalOHII has offered no way to tell whether this is the case,” wrote John M. Simpson, Consumer Watchdog’s Privacy Project director. “You have released a document, ‘Privacy and Security Team Law Harmonization Recommendations.’ Frankly this document is incomprehensible.  It is simply a list of terms followed by the recommendation to adopt a definition – usually from HIPAA. There is no analysis of how CMIA definitions differ from HIPAA definitions or explanation of why the recommendations were made.  Put simply, you need to show your work.”

Read Consumer Watchdog’s comments here: http://www.consumerwatchdog.org/resources/calohii072012.pdf

“To be blunt, there is nothing about the process of developing these recommendations so far that leads Consumer Watchdog to believe that the goal is to strengthen privacy protections for Californians’ medical information,” wrote Simpson.

Consumer Watchdog said there are troubling basic procedural aspects about the harmonization process as well.   It is not clear who selected the Privacy and Security Teams and under what authority they did so.  Consumer Watchdog could find no record of votes taken, nor any real minutes of meetings.

Consumer Watchdog believes that the current law harmonization process has done nothing to promote the public’s trust.  If anything, trust has been undermined, the group said.

“The very real risk is that harmonization will be a closed-door, industry-dominated process that lacks both political legitimacy and policy rationality,” wrote Simpson.

The federal government offers a model of how such a process could work, Consumer Watchdog said. Under the federal Administrative Procedure Act’s notice-and-comment rulemaking provisions, federal agencies develop new rules on a concrete administrative record that includes not only the agency's own research and thinking, but also the written views of stakeholders, who themselves can introduce facts, experience and opinion. This process requires the agency to make its decisions based on a factual record, to consider and respond to public comments, and to articulate why the agency made important choices, thus promoting rational policy over political interest.

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