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FEDERAL
LEGISLATION AND ADVOCACY
Richard Yanes, Esq
In collaboration with other mental health advocacy groups this spring, the
Clinical Social Work Federation worked to put grass roots pressure on
legislators to add $10 billion to the budgets of needed programs, to move
legislation detrimental to patients' private health information to a study
group, and to restore requirements for consent to access private health
information to federal regulations. And the news is good!
When the President submits his fiscal year budget, which begins in October, both
houses of Congress typically adopt budget resolutions to provide guidelines for
spending as they develop their budgets. This year, in the Senate, the proposed
resolution met stiff opposition from moderate Republicans who had only recently
voted, reluctantly, to cut $39 billion from Medicare, Medicaid, education,
student loan programs, and others, to pass this year's budget (2006), months
after the deadline.
Enter Senators Arlen Specter (R-PA) and Tom Harkin (D-IA), who provided a
rallying point for the disaffected Republicans when they proposed an amendment
to restore $10 billion to the resolution, first in the Senate's Health,
Education, Labor, and Pensions Committee and then on the Senate floor. And
enter, too, a number of mental health organizations (including the Federation)
which each year monitor the budget process and lobby on behalf of funding for
mental health programs.
The Federation's grass roots efforts were first directed at the Committee where
the Specter-Harkin Budget Amendment failed on a 14-22 vote. Committed to
bringing the amendment to the Senate floor for a vote, we again joined a variety
of organizations to lobby for its passage. On March 16, the Senate adopted the
Specter-Harkin amendment to the budget resolution on a vote of 73-27 and then
went on to pass the resolution - a tenacious effort well done by all involved.
A National Integrated Electronic Health Information System
The Federation, collaborating with a number of work groups committed to the preservation of privacy of health information, has been watching the Congress move closer and closer to action on a national integrated electronic health information system over the past few years. While we agree that the proposed system can offer increased quality and speed of care as well as the reduction of costs, it also has the potential to take a patient's most sensitive health information and allow access and distribution without the patient's consent.
Recognizing also that some legislation on this topic is likely to pass in the next few years, our lobbying efforts have been directed not at opposition but at assisting the author to better approach certain issues. To that end, the Federation's Laura Groshong, Chair of our Government Relations Committee, alerted our members, who sent more than 50 emails expressing their concerns to Representative Nancy Johnson (R-CT), who had introduced legislation on this topic (HR 4157 The Health Information Technology Promotion Act).
The Federation also directed correspondence to Johnson stating our position and our desire to work with her on the bill, and visited her staff to educate them on the issues.
In early April we received word that Representative Johnson had agreed to request a study of the various issues raised; the Federation will be very involved in the development of that study. Congratulations on an exceptional effort to all who assisted.
Proposed Privacy Legislation
When the amended HIPAA Privacy Regulations took effect three years ago, the Administration had changed the provisions requiring the individual’s consent to access and use protected health information (PHI) to what is referred to as “regulatory permission”. That is, managed care companies, insurers, et al, were given permission through the regulation to access and use PHI without requiring the individual’s consent.
The Federation, along with a number of mental health organizations, continued working to redress this breach of privacy and recently secured a commitment from Representative Patrick Kennedy (D-RI) to introduce legislation to return the patient's consent as a requirement for access and distribution of PHI to the regulation. The legislation will also assure that federal regulations will not preempt more stringent state privacy laws, require notification to patients of security breaches with liability imposed for unauthorized access of PHI, and require an audit trail of PHI. This is an important step in returning control of a patient's PHI to the patient.
And In Court . . . We Win One
Prior to 2002, Oregon passed legislation which allowed for physician assisted suicide for patients who were terminally ill and determined to have six months or less to live. The Death With Dignity Act imposed a variety of procedures that had to be followed as safeguards. We first became involved in this case in 2002 when, after a federal district court upheld the Act, the Department of Justice (DOJ) appealed the decision to the Ninth District Court of Appeals. Last year we once again joined a coalition of mental health professionals and organizations as Amici as the DOJ appealed the case to the U.S. Supreme Court. The Court heard oral arguments in October and issued its decision upholding the Act on a variety of grounds in January.
We became involved in this case not as a statement in support of physician assisted suicide, an issue upon which the Federation has taken no position, but in support of the long-established concept that a decision to end one's life was not necessarily irrational. The DOJ argued in their briefs that the choice by a patient to end his or her life was a demonstration of impaired judgment and, thus, not a rational decision.
The portion of the Amicus brief that we supported argued that there are adequate diagnostic tools available to determine the absence or presence of mental capacity and impaired judgment and that these tools have long been available and used by mental health professionals. The Court heard and agreed.
Richard Yanes, Esq., is executive director of the Clinical Social Work Federation.