The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

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The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.

For full contact information and a brief bio, please see David's profile.

Please note that I am only able to provide legal advice to clients. I am not able to provide free legal advice. Any unsolicited information sent to David Fraser cannot be considered to be solicitor-client privileged.

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The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.

Monday, January 31, 2005

US health privacy law affects research recruitment 

A study being released in the Annals of Epidemilogy reports that HIPAA is having a dire impact upon research. Not surprisingly, one of the big problems is that hospitals and universities are being inconsistent in the application of the new law.

U.S. Newswire : Releases : "Privacy Rule Cuts Research Recruitment By More Than Half...":

"PITTSBURGH, Jan. 31 /U.S. Newswire/ -- The Health Insurance Portability and Accountability Act (HIPAA) designed to enhance patient confidentiality by restricting access to medical records is slowing the progress of critical biomedical research, according to an editorial published in the February issue of the journal Annals of Epidemiology. In perhaps the first quantitative study of recruitment trends following the rule's implementation in April 2003, Roberta B. Ness, M.D., M.P.H., reports a significant "chilling effect."

Dr. Ness, professor and chair of the department of epidemiology at the University of Pittsburgh's Graduate School of Public Health (GSPH), documented trends in recruitment of research subjects to the Prenatal Exposures and Preeclampsia Program Project (PEPP), an ongoing prospective study of women followed throughout pregnancy at the Magee-Womens Hospital of the University of Pittsburgh Medical Center, for which she is a co- investigator. The ultimate aim of the study is to determine the cause of preeclampsia, a devastating complication that affects up to seven percent of first pregnancies and can be fatal for mother and baby.

The first phase of the PEPP study took place prior to HIPAA implementation from 1997 to 2001, with an average of 12.4 women being recruited each week, writes Dr. Ness, who also is chair of the policy committee for the American College of Epidemiology. After HIPAA, due to restrictions on researchers' ability to identify potentially eligible subjects, recruitment fell to an average range of 2.5 to 5.7 women a week.

Inconsistencies among academic institutions concerning interpretation of HIPAA regulations remain a potent threat to a wide range of clinical and biomedical research studies, she said. The University of Pittsburgh's Institutional Review Board (IRB), for instance, at first disallowed waivers of the rule. Investigators may seek a waiver to allow them easier access to health information protected as private under HIPAA, but waiver criteria vary among universities. In Pittsburgh, a waiver was granted in 2003 and rescinded in 2004.

"Recruitment with a HIPAA waiver decreased by half, and recruitment without a HIPAA waiver fell by half again," said Dr. Ness.

Internal university efforts continue to resolve these kinds of conflicts for researchers, but modifications to the rule itself would go a long way toward standardizing the way institutions view it, Dr. Ness said, adding that the University of Pittsburgh is not alone in its more conservative interpretation of the HIPAA rule.

"The post-HIPAA era brought an unwillingness on the part of the University of California system to continue its 16-year-long rapid cancer case reporting relationship with the California State Cancer Registry," she said. "For well over a year, researchers were barred from access to large numbers of recently diagnosed cancer patients in a case that also briefly engaged the state's court system. Fortunately, the University of California reversed its stance."

Still, concern continues among many researchers, Dr. Ness said. The American College of Epidemiology, on whose board Dr. Ness serves, and the Association of American Medical Colleges have called on the U.S. Department of Health and Human Services (HHS) to address the issue.

"An HHS advisory committee has proposed HIPAA modifications that include harmonizing HIPAA with the common rule that determines other IRB activities, among others," she said. "We can only hope that the new Secretary for Health and Human Services will adopt these modifications."

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