No Consent Required: 4 Things You Need To Know On New VA Privacy Rules

The Department of Veterans Affairs clarified its position about whether it can share veterans’ health information without consent on Monday evening.

“Veterans will no longer be required to provide signed, written authorization for VA to release electronic health information to community providers for the purposes of receiving medical treatment.”

So what does this mean?

There are four things you need to know to understand where to turn when addressing this issue.

Before I get into the list, just know VA truly believes it is no longer obligated to adhere to traditional notions of privacy and property rights when it comes to your health information.

The effective date of the new sharing policy was September 30, 2019. If you did not opt-out by yesterday, you are technically opted in per my VA contacts. Agency employees will supposedly begin the opt-in process internally sometime in January 2020 (so they say).

Okay, below this Facebook Live video is the list of 4. The video contains my explanation of the program, where it came from, and some theories about why what VA is doing may be in violation of various laws.

What I Did

[Psst… if you want to know what I did to opt-out, take a close look at the highlighted portion in the Facebook Live video above of the new privacy rule.]

1. MISSION Act Does Not Say What VA Says It Says

First, the MISSION Act does not require the agency to share your health information with the Health Information Exchange (HIE) in order for you to use community care or to have your data input within the Obama-era Virtual Lifetime Electronic Record.

The relevant section of the MISSION Act as codified in 38 USC § 7332(b)(2)(H)(i) states the Secretary may disclose the contents of a medical record with or without consent: “To a non-Department entity (including private entities and other Federal agencies) for purposes of providing health care, including hospital care, medical services, and extended care services, to patients or performing other health care-related activities or functions.”

The relevant part of the statute does not state the VA is required to share your health information without consent in the manner the agency is currently asserting. It also does not state the agency can input your data into the Virtual Lifetime Electronic File or use the Health Information Exchange without consent.

2. Multiple Ways To Opt-Out

Second, the opt-out form, VA Form 10-10164, is not the only way to tell the agency you do not want them to send you health information to the exchange. You can provide a letter instructing the agency what information you do not want to be disclosed. That is what I did since I did not agree with the language in the opt-out form. Whether VA will abide by my request may be a question worth investigating. The form in question actually requires veterans to expressly opt-in to the HIE in order to opt-out.

Get it? The form is a Catch-22. The cover letter to the newly enacted privacy rules says you need to use the form to opt-out but you are actually opting in if you sign it to opt-out.

Seems legit.

3. Failed To Follow The Privacy Act

Third, the VA pushed out its new privacy rules in a manner that likely violates the Privacy Act and Constitution since they provided one business day between projected delivery and the effective date on the new policy. At least one group of veterans plans to litigate the matter, Military-Veterans Advocacy.

Take a quick gander at 5 USC § 552a.

4. Again, Health Information Exchanges?

Fourth, the relevant part of the MISSION Act, § 132, does not require the agency to use Health Information Exchanges when providing health information required for clinicians in the community care system to provide veterans with care.

The current system is still in place and allows the transfer of information needed to safely provide health care services to veterans.

Agency bureaucrats seem hell-bent on merging veterans’ records with the Virtual Lifetime Electronic Record, and the ambiguous language of the MISSION Act as codified in 38 USC § 7332(b)(2)(H)(i) provided the opportunity to make the dream a reality for the technocratic elite in Silicone Valley.

This is why I included the video clip of the Eisenhower farewell address pinned at the section addressing the technologic elites.

P.S. A lawsuit will be filed in the next two days about the privacy rule roll-out.

RELATED: Your Health Information Is Out There

Spin – Written Consent Is A Burden

I love how the agency is trying to use the Apple spin to gain the upper hand on the news cycle following its completely botched rollout of the MISSION Act this week – – Operation No-Consent.

You may recall Apple was heavily criticized for removing the 3.5 mm headphone adapter. The change made it impossible to listen to music with wired headphones while charging or using any other plugin device when the battery required charing.

Rather than admit the company simply tried to increase its profit margin by making the phone less convenient, Apple spun it as if the company was being “brave” by removing the 3.5 mm headphone adapter. I know the change made the phone less user-friendly and more costly in some instances.

Enter VA.

RELATED: Congress Reminds VA To Be Honest

Why Health Information Exchange

The agency is now trying to spin its decision to no longer adhere to the Privacy Act when releasing confidential medical records to non-VA entities. Specifically, really wants to release our health information to the Health Information Exchange publicly called the eHealth Exchange.

The exchange is operated by a nonprofit Healtheway, Inc, that is operating the deal as dba Sequoia Project. It is working on essentially integrating the Obama-era Virtual Lifetime Electronic Record into the MISSION Act flow if health information between the agency and community care providers. Outside VA, the HIE is actually the eHealth Exchange.

The rub comes in where veterans dislike the idea of a third-party entity like Sequoia Project serving as the gatekeeper between the agency, the veteran, and the community care provider.

RELATED: VA Auto-Enrolls Cancer Survivors For Genetic Info

Can’t Get Health Information Back

Presently, VA was required to facilitate that process but is attempting to outsource the responsibility to a third party. Once the third party is in possession of the health information, the agency says veterans can no longer claw back to the health information released.

Last week, the agency swiftly pushed out massive privacy changes to the veteran community where 2 million veterans received notice of significant changes on Thursday, September 26, 2019.

The effective date of the new policy was September 30, 2019. Meaning, veterans only had one business day to sort out whether to opt-out or stay in the new system by filing an opt-out form, VA Form 10-10164, Opt-Out of Sharing Protected Health Information Through Health Information Exchanges.

The agency informed veterans the only way to opt-out was to submit the form in person or via US Mail by September 30, 2019. Without being opted out, veterans would be automatically opted in under the authority of Secretary Robert Wilkie.

RELATED: China Hacking VA Records Since 2010

Prior Consent Required

Previously, under standard HIPAA requirements and the Privacy Act, the agency was required to seek written consent from the veteran before sharing health information.

Not anymore.

Opt-Out = Opt-In

The problem with the new opt-out form is that it requires veterans to expressly opt-in to the new health information sharing scheme the form purports to opt them out of. “By signing this form, I am agreeing that my health information will no longer be shared electronically with partners through HIE for their treatment of me except in a life-threatening medical emergency.”

The offending language suggests the agency would use the Health Information Exchange without consent in the event of emergencies, but the new privacy rule sent to veterans last week provided a severely expanded interpretation.

Privacy Act Violations

The Privacy Act does not appear to have been an issue the drafters of the new privacy rules were concerned about.

The form points out that by opting out, a veteran would still be able to use community care, but the agency would utilize standard means of communication outside the exchanges, “My health information will continue to be shared for my treatment on paper or through fax or other legally allowed means other than HIE.”

Meanwhile, the big VSO’s, VFW, Legion, and Disabled American Veterans, appear to be asleep at the wheel. None of the organizations have publicly taken stands against the severe violation of privacy and property rights.

The agency asked for feedback from the Iron Triangle Big Six VSO’s last week, but our trusty VSO community failed to raise much of an eyebrow until I blasted the agency last week on Facebook Live.

Those Supporting Less Privacy

Those in support of the new privacy erosion use the same arguments we hear when law enforcement propose attacks against the 4th Amendment.

“What’s the big deal?”

Well, if you do not think this is a big deal, then I am confused about why you served in the military, to begin with?

I swore to protect the Constitution in the military.

My right to privacy and property right to keep my health information where I want it seems like a fundamental right. You can also choose to disregard your rights, but do not force your position onto me or any other veteran.

Since I swore an oath an attorney to uphold the Constitution, I still fight for those same rights only using different tools and wearing an uncomfortable suit.

Another argument I have heard suggests that somehow veterans will be harmed if we do not destroy this privacy right. Now, this position is obviously absurd given veterans have existed for well over 100 years in this country without our despots in VA disregarding our rights in this way. I would assume the veteran population will continue even if we opt to not use the HIE.

So what do you think about the new policy? Is it worth it? Should we force veterans to abandon the rights we fought to protect in the name of safety, health care quality, or efficiency?

Below is the full agency press release issued tonight, in italics.

VA improves information sharing with community care providers

WASHINGTON – The U.S. Department of Veterans Affairs (VA) will implement new procedures by January 2020, for sharing medical information for Veterans accessing health care in the community.

The department is changing its procedures for electronic health information sharing in accordance with Section 132 of the VA Maintaining Internal Systems and Strengthening Integrated Outside Networks Act of 2018 (MISSION Act).

“The MISSION Act gives Veterans greater access to care, whether at VA facilities or in the community,” said VA Secretary Robert Wilkie. “We are providing seamless access to care, improving efficiency and helping to ensure Veterans get the care they need, where and when they need it.”

The change moves VA from an ‘opt-in’ to an ‘opt-out’ model of electronic health information sharing. Veterans will no longer be required to provide signed, written authorization for VA to release electronic health information to community providers for the purposes of receiving medical treatment.

VA shares health information with community providers using a secure and safe electronic system called the Veterans Health Information Exchange. This electronic exchange of information improves patient safety — particularly during emergency situations — and allows for improved care coordination for Veterans receiving care in the community.

Veterans who do not want their health information shared electronically can opt out by submitting VA Form 10-10164 (opt out of sharing) to the Release of Information Office at the nearest VA medical center now or at any time going forward. Veterans who previously opted out on VA Form 10-0484 prior to Sept. 30, do not need to submit new forms. However, Veterans who restricted what information VA shared by submitting VA Form 10-0525 (restriction request) will need to opt out entirely by submitting Form 10-10164.

VA is committed to protecting Veteran privacy. Only community health care providers and organizations that have partnership agreements with VA and are part of VA’s approved, trusted network may receive VA health information.

For information about VA’s health information exchange visit www.va.gov/vler.

Thoughts?

While VA obviously does not give a rip what we think on this issue, I would still like to know.

So, what do you think? Did VA blow it or are mandatory no consent laws the new normal?

Is this how you thought you’d be treated after fighting to protect the Constitution?