The privacy of medical records
A year ago, the issue of federal preemptive legislation to protect personal health data was mired in a heated debate within the health care community (Issues, Summer 1996). This debate effectively squelched congressional activity related to the three major bills that had been introduced to address health data protection. Not surprisingly, the 104th Congress adjourned without passing legislation to establish the much-needed national framework for protecting personal health data. Today, the debate surrounding health information privacy is far from resolved, but the issue is attracting increasing attention within and outside Congress, and several factors are increasing the likelihood that the 105th Congress will attempt to fill the current void in protection of health data.
The major factor keeping the issue of health data protection on track is the passage of the Health Insurance Portability and Accountability Act. Its administrative simplification provisions mandate the National Committee for Vital and Health Statistics (NCVHS) to study health care information standardization, security, and privacy issues. The law stipulates that if Congress does not enact health privacy legislation by August 1999, the Secretary of Health and Human Services must consult NCVHS and promulgate standards on rights, procedures, and appropriate uses of health data. Thus, even if Congress fails to act, there will be some form of federal health data protection by 1999. However, in a June 1997 report to the Secretary of Health and Human Services, NCVHS stated that existence of regulatory authority is not an adequate alternative to legislation and recommended that the 105th Congress enact a health privacy law before it adjourns. Secretary Shalala responded to the NCVHS report by announcing that the Department of Health and Human Services would soon send recommendations to Congress for federal legislation.
The forthcoming legislation will join two other bills already introduced that address health information privacy and practices. In addition, several bills have been introduced that specifically limit the disclosure and use of genetic information. And as part of the recent budget reconciliation bill, an amendment to the Social Security Act requires health care providers who participate in a specific Medicare program to establish procedures that safeguard the privacy of individually identifiable information, maintain records in a manner that is timely and accurate, and assure timely access by enrollees to their records.
According to Secretary Shalala, five principles will guide the recommended legislation. First, with very few exceptions, a health care consumer's personal information should be disclosed only for health care. Second, individuals who legally receive health information must safeguard it. Third, citizens must have the ability to learn who is looking in their records, what is in the records, how to access their records, and what they can do to amend incorrect information. Fourth, anyone who uses information improperly should be severely punished. Fifth, as a society, we must balance the protection of privacy with our public responsibility to support national priorities. If legislation is passed that meets these objectives, a solid foundation for health data protection in this country will result.
New life for brownfields
Since "Restoring Contaminated Industrial Sites" appeared in the Spring 1994 Issues, several federal and state policies have been introduced to encourage the reuse of the abandoned, underused, and often contaminated industrial properties known as brownfields. As a result, a growing number of successful projects are providing environmental cleanup, reducing neighborhood blight, generating tax revenues, and creating jobs. Much, however, remains to be done to overcome financial and regulatory barriers.
In April 1997, the Clinton administration announced its Brownfields National Partnership, which included more than 100 specific initiatives to link the resources and activities of more than a dozen federal agencies. The Environmental Protection Agency, for instance, expects to set aside $100 million next year to fund additional site-assessment and cleanup activities at brownfield locations. The Department of Housing and Urban Development plans to encourage local governments to use Community Development Block Grant funds and Section 108 loan guarantees for brownfield projects.
Congress in the past two years has passed two significant brownfield provisions. The first, approved in September 1996, spells out the conditions under which lenders could be held liable for loans made to polluters, making clear that normal banking functions such as loan workouts, loan processing, or foreclosures by themselves would not trigger liability for contamination.
The recently approved Balanced Budget Act of 1997 includes tax-code provisions to make it more attractive for current and prospective site owners to clean and redevelop brownfield sites. The Treasury Department estimates that the $1.5 billion in tax relief will leverage more than $6 billion in private sector brownfield activity and encourage redevelopment of at least 14,000 sites.
Some 18 brownfield bills have been introduced in the 105th Congress, and more are expected. How action unfolds will depend on the approach taken to Superfund reauthorization and on the willingness of key committee chairmen to advance independent brownfield bills. Current proposals include tax incentives to attract investment and provide a cash-flow cushion for companies undertaking brownfield reuse projects, direct capital funding for small companies that have little tax liability or that lack the cash needed to launch brownfield project, and regulatory reforms to clarify liability concerns.
Some three dozen states have established voluntary cleanup programs, which bring considerable certainty to the remediation and reuse process. Among the innovative proposals now before state legislatures are loan guarantees to private lenders making loans on brownfield properties (in Massachusetts), a contaminated-property remediation insurance fund (in Connecticut), and joint state-local property tax credits to encourage reuse by offsetting increased property values stemming from cleanup (in Maryland).
It will require action on these proposals plus much more government effort to level the economic playing field for greenfield locations and brownfield sites. In particular, Congress and the states must provide the framework that makes more brownfields viable for economic activity and encourages the private sector to invest in redevelopment projects.