DISSENTING VIEWS OF REPRESENTATIVES MARKEY,
DINGELL, AND WAXMAN

We are concerned about the privacy implications of the prescription drug discount card program endorsement provision of the Medicine Modernization and Prescription Drug Act of 2002. The discount card program fails to prevent the private medical information of seniors from being used for purposes other than operation of the discount card program without prior authorization by the beneficiary. Privatizing prescription drug benefits for seniors is itself misguided; privatizing these benefits without protecting the personal information of the beneficiary is even worse.

Contrary to the view expressed by the Majority during the Committee's markup, many of these discount card sponsors would not be covered under the existing restrictions mandated by the Health Insurance Portability and Accountability Act (HIPAA). HIPAA only applies to health care providers, health insurers, and health care clearinghouses. Since many of the drug card sponsors fit into none of these categories, they are exempt from the existing regulations. In addition, the March 6, 2002 rule published by the Centers for Medicare and Medicaid Services (CMS), which first proposed the creation of the prescription drug discount card program, contains no reference whatsoever to the applicability of the HIPAA privacy rule to these card programs. So there is no guarantee, nor even the promise of one, that a senior's medical history will not be sold by a drug discount card sponsor to those who would use that sensitive information to prey upon vulnerable seniors.

In addition, the bill also stipulates that these card program sponsors may

"Encourage that enrollees under a plan make payment of the premium established by the plan through an electronic funds transfer mechanism, such as automatic charges of an account at a financial institution or a credit or debit card account, or, at the option of an enrollee, through withholding from benefit payments."

Thus, the drug card sponsor will not only have full access to a senior's medical history and know what medications he or she is taking, they may also know the senior's:

1. Checking account number

2. Savings account number

3. Credit card number

4. Brokerage money market account number

5. Social Security number

6. Private annuity account number

High-pressure telemarketers who seek to prey upon vulnerable seniors would have all the information needed to target them. These telemarketers could offer the seniors `miracle' cures for cancer or Alzheimer's or other diseases. They could try to sell the seniors other services or products that do not work or that they do not need. In short, they could rob seniors blind using their special access to a senior's health information and their knowledge of that senior's financial information.

The Markey amendment, which was defeated in Committee, sought to ensure that the discount card sponsors are subject to reasonable privacy regulations, such as the requirement that prior authorization be obtained before any sensitive information is used or disclosed for any purpose unrelated to the operation of the drug discount card program. Yet, as approved by the Committee, the prescription drug discount card sponsors may receive the endorsement of the Secretary of Health and Human Services without being subject to reasonable privacy regulations.

The Committee's rejection of the Markey amendment enables the drug card sponsors to buy and sell seniors' most intimate personal information as if it were a commodity, and to do so with the endorsement of the Secretary of Health and Human Services.

We respectfully dissent.

ED MARKEY
JOHN D. DINGELL
HENRY A. WAXMAN