Texas: Your Boss, Your Medical Records and the Information Economy

According to the CDC's Public Health Law News (19 March 2008) and the Houston Chronicle, Texas is now the first state in the nation to require (as of Jan. 1, 2008) that insurance providers hand over employees' health records to their employers. Currently, employees have no way of knowing of (or resisting) their bosses' efforts to acquire their medical records.

This new Texas law, HB 2015 [PDF], passed the legislature despite the opposition of the insurance industry. Thus, at least this time, the insurance industry was arguing in favor of protecting patient privacy rights. As L. M. Sixel writes in the Houston Chronicle: "Medical privacy has been protected for years by the most unlikely guardians: insurance companies." But, before we imagine the insurance industry as a giant defending the front lines in the battle to secure the privacy of medical records, we should think about what was really at stake in this legislative tussle: information in the information economy.

Employers argued that they needed access to their employees' medical records to better assess and more wisely purchase health plans for their workforce. Insurers, on the other hand, would want to restrict access to information they already possess; information, which allows them (and not their customers) to make better bets on their investments. Of course, many worry that employers will misuse medical information about their employees, but I doubt that the insurance industry cares much about discriminatory employment practices. Would, for example, the insurer suffer if employees with increased health risks were some how trimmed from an employer's payroll?

Readers of this blog will want to know what this means for the exchange of genetic and other predictive medical information between insurers and employers. According to the Houston Chronicle, there's nothing to fear in Texas, because "employers still cannot obtain health information protected by other state or federal laws, such as HIV status, genetic test results or mental illness". I'm not a legal scholar, so this was news to me. Do we already have federal protections against the discriminatory use of genetic information in the work place? If so, how will the much discussed GINA add to these protections? - J.O.