Protecting Privacy Absent a Constitutional Right: A Plausible Solution to Safeguarding Medical Records

Washington University Law Review Volume 85 | Issue 3 January 2007 Protecting Privacy Absent a Constitutional Right: A Plausible Solution to Safeguarding Medical Records Jessica C. Wilson Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Constitutional Law Commons Recommended Citation Jessica C. Wilson, Protecting Privacy Absent a Constitutional Right: A Plausible Solution to Safeguarding Medical Records, 85 Wash. U. L. Rev. 653 (2007). Available at: https://openscholarship.wustl.edu/law_lawreview/vol85/iss3/5 This Note is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact . PROTECTING PRIVACY ABSENT A CONSTITUTIONAL RIGHT: A PLAUSIBLE SOLUTION TO SAFEGUARDING MEDICAL RECORDS I. INTRODUCTION Diabetes is no longer just a disease; it is now an epidemic. 1 Diabetes, a noninfectious, chronic disease that inhibits the body’s ability to produce and use insulin, 2 affects around twenty-one million Americans. 3 In an effort to study and control the growing number of diabetes cases in America, the New York City Department of Health and Mental Hygiene (DOHMH) recently implemented a revolutionary program to monitor and evaluate diabetes in conjunction with patient care. 4 The unprecedented program, which took effect in January of 2006, is unique because it monitors a noninfectious disease. 5 Historically, governments have implemented such programs only for infectious, communicable diseases, such as HIV and tuberculosis, which pose a public health threat of spreading among the population. 6 By including diabetes in its public 1. New York City officials now identify diabetes as an epidemic because more than one in eight New Yorkers suffers from the disease. “Diabetes is the only major disease in the city that is growing, both in the number of new cases and the number of people it kills.” N. R. Kleinfield, Diabetes and Its Awful Toll Quietly Emerge as a Crisis, N.Y. TIMES, Jan. 9, 2006, at A1. 2. There are multiple types of diabetes; however, Types I and II are the most common. Type I diabetes occurs when the body destroys the cells that produce insulin in the pancreas. Id. Without insulin, the body cannot control its blood sugar levels. Type I diabetes is very serious and is typically diagnosed at a young age. American Diabetes Association, Type I Diabetes, http://www.diabetes.org/ type-1-diabetes.jsp (last visited Nov. 8, 2007). Type II diabetes occurs when the body develops a resistance to insulin. American Diabetes Association, Type 2 Diabetes, http://www.diabetes.org/type2-diabetes.jsp (last visited Nov. 8, 2007). Typically, Type II diabetes occurs later in life and may be prevented by changes in diet and exercise. Kleinfield, supra note 1. Type II diabetes accounts for ninety to ninety-five percent of all diabetes cases. Id. 3. American Diabetes Association, All About Diabetes, http://www.diabetes.org/aboutdiabetes.jsp (last visited Nov. 8, 2007). 4. See Rob Stein, New York City Starts to Monitor Diabetics, WASH. POST, Jan. 11, 2006, at A3. 5. Id. DOHMH’s purported goals of the two-part program are surveillance and evaluation, environmental modification, policy development and regulation, direct provision and monitoring of clinical care, and health education. LYNN D. SILVER & DIANA K. BERGER, IMPROVING DIABETES CARE FOR ALL NEW YORKERS 19, http://www.nyc.gov/html/doh/downloads/pdf/diabetes/diabetespresentation-a1c-registry.pdf. For a detailed discussion of DOHMH’s program, see Amy L. Fairchild & Ava Alkon, Back to the Future? Diabetes, HIV, and the Boundaries of Public Health, 32 J. HEALTH POL. POL’Y & L. 561 (2007). 6. Stein, supra note 4. See also Harold Edgar & Hazel Sandomire, Medical Privacy Issues in the Age of AIDS: Legislative Options, 16 AM. J.L. & MED. 155, 164 (1990). 653 Washington University Open Scholarship p653 Wilson book pages.doc2/7/2008 654 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 85:653 health programs, DOHMH has expanded its notion of public health and the government’s role in disease monitoring and control. New York City’s diabetes program has two components: a registry and a pilot intervention program. 7 The registry component, known as the New York City A1C Registry (NYCAR), requires all 120 of New York City’s medical testing laboratories to report the results of A1C blood tests 8 to DOHMH. 9 Diabetic patients undergo A1C blood tests every three to six months during regularly scheduled medical appointments. 10 Along with each patient’s A1C blood test results, medical laboratories report to DOHMH each patient’s full name, date of birth, the name and address of the patient’s physician, the address where the A1C test was conducted, and the date the test results became available. 11 DOHMH officials use this information to survey, map, and describe the emerging diabetes epidemic. 12 Individual patients with poor A1C blood test results 13 receive a letter notifying them of their test results along with resource material about diabetes. 14 The second component of the program utilizes the NYCAR registry to proactively influence the treatment of diabetes patients. 15 In a pilot intervention program 16 restricted solely to the South Bronx, city officials use the confidential information obtained through the registry to directly contact diabetes patients and their physicians. 17 In addition to receiving a nonconsensual initial letter sent by the registry, individual patients are also contacted periodically by telephone to discuss their A1C blood test results and how to manage their diabetes. 18 The caller contacting them is not a 7. See The New York City Department of Health and Mental Hygiene (DOHMH), Diabetes Prevention and Control, http://www.nyc.gov/html/doh/html/diabetes/diabetes-nycar.shtml (last visited Nov. 8, 2007). 8. A1C blood tests provide long-term measurements of a patient’s blood sugar levels by indexing blood glucose levels over the past ninety days. Id. 9. N.Y., N.Y., HEALTH CODE tit. 24, § 13.04 (2006). See also Diabetes Prevention and Control, supra note 7; Stein, supra note 4. 10. Robert Steinbrook, Facing the Diabetes Epidemic—Mandatory Reporting of Glycosylated Hemoglobin Values in New York City, 354 NEW ENG. J. MED. 545, 546 (2006). 11. N.Y., N.Y., HEALTH CODE tit. 24, § 13.03 (2006). Accord Steinbrook, supra note 10. 12. SILVER & BERGER, supra note 5, at 25. 13. The DOHMH defines poor A1C blood tests as >8.0%. The optimal A1C blood test result is 7.0%. Id. at 27. 14. Id. 15. Diabetes Prevention and Control, supra note 7. 16. The program began in July 2007 and it is unclear how long it will last. Steinbrook, supra note 10, at 546. 17. Stein, supra note 4. 18. SILVER & BERGER, supra note 5, at 27. A patient is contacted when his A1C test results exceed 8.0% (...truncated)