Statement of Stephen C. Joseph, M.D., M.P.H.
Assistant Secretary of Defense for Health Affairs
Before the National Committee on Vital and Health Statistics
February 4, 1997 in Washington D.C.

On behalf of the Department of Defense, I thank you for this opportunity to comment on the issue of confidentiality of medical records.

First let me state that it is Department of Defense policy to safeguard personal information contained in any system of records, including medical records. Unauthorized release of information about an individual contained in any Defense system of records would constitute an unwarranted invasion of privacy and could subject the releaser to civil and criminal penalties. Department of Defense medical records also are exempted from public disclosure under the Freedom of Information Act.

This strong Departmental policy to safeguard personal information stems from the Privacy Act, which does allow disclosure for specific purposes related to official duties. We recognize that the Committee has under discussion proposed changes to the confidentiality rules which, as applied to federal agencies, seek to limit some disclosures currently allowed. For the most part, we welcome these changes. However, we must clearly go on the record stating that some aspects of the disclosure authorities included in the Privacy Act need to be preserved. It is the position of the Department of Defense that any legislation addressing medical records confidentiality must allow the Department to use those records for purposes critical to national defense and mission effectiveness.

An essential element of national defense and mission effectiveness is that responsible military command authority have accurate medical information regarding military members, civilian employees and certain government contractor personnel who are performing critical functions. Let me offer a few examples of when medical records disclosures can be an essential aspect of mission effectiveness and national defense:

• a pilot receiving medication that may affect alertness;
• an active duty member -- or civilian or contract employee -- with an intolerance for a vaccine necessary for deployment to the specific geographic destination;
• results of periodic monitoring in the workplace of the health status of workers exposed to hazardous materials;
• any significant medical or psychological changes in a military member, civilian employee or government contractor employee subject to the Nuclear Weapons Personnel Reliability Program;
• a military recruit or member with an illness or injury causing noncompliance with mandatory physical accession or retention standards; or,
• use of dental records, blood type match, or DNA analysis for identification of remains of military members killed in action.

These instances are not all-inclusive, but do represent circumstances where commanders must have critical medical information to make safe and protective decisions regarding their entire units.

Let me now turn to two circumstances in which Privacy Act protections, by themselves, are insufficient.

The first has to do with physician-patient privilege within the military setting. This issue gained heightened attention by a recent case of a family member who sought care from a military health care provider due to an alleged rape by an active duty member. The military psychiatrist was ordered to give a military lawyer the patient's medical records. In military court cases, based on current Military Rules of Evidence, physician-patient privilege does not exist. This lack of confidentiality causes both our patients and our mental health professionals grave concern.

The records of a military psychotherapist's session with the spouse or child of a military member should not be subject to disclosure under the same rules that might apply to active duty members. Even though this may be allowed under the Privacy Act, I believe strongly that additional confidentiality restrictions should apply. In this regard, I have urged that the Department General Counsel take all measures, as early as possible, to amend the Military Rules of Evidence to create privilege between non-active duty patients and military health care providers. Presently, the Department has this issue under intense review, spurred on by substantial interest in Congress, in the medical community, and among our health care beneficiaries.

Additionally, the Supreme Court's recent recognition of a psychotherapist-patient privilege under the Federal Rules of Evidence has highlighted this issue.

The second circumstance in which we believe the Privacy Act protections are, by themselves, inadequate is the use of DNA information.

In 1991, the Secretary of Defense authorized the establishment of a DNA identification laboratory and specimen repository. This means of identification is more expeditious and allows more timely return of remains to relatives.

The repository, established for the specific purpose of remains identification, houses antemortem reference specimens from each Service member for comparative DNA profile analysis. The mandatory specimens consist of air-dried bloodstains and oral swabs. DNA information and repositories of specimens suitable for DNA analysis present special issues regarding confidentiality because they contain a great deal of medical, physical and family information.

In establishing this Repository, DoD imposed restrictions on disclosure that were much stricter than those allowed under the Privacy Act. Moreover, we further refined these restrictions early last year, strengthening privacy protections. As I stated, DNA specimens are collected for the purpose of remains identification. There are, however, other -- very specific -- permissible uses of DNA specimens. These other uses are for:

• internal quality assurance to validate the processes for collection,
• a purpose for which the donor consents, or,
• as compelled by other applicable law in a case in which all of the following conditions are met:
• proper judicial authorization is presented to DoD;
• the crime under investigation or prosecution is punishable by one year or more confinement;
• no reasonable alternative for obtaining a specimen exists; and,
• the Assistant Secretary of Defense for Health Affairs, after consultation with the General Counsel, approves the use.

It is important to note that when DNA typing is necessary, only the specific genetic information for identification is obtained. No other tests are performed. The Department scrupulously safeguards personal privacy interests in the specimen.

Further, the Department follows a routine destruction schedule for DNA samples. Additionally, in last year's refinements of the privacy considerations of DNA specimens, a procedure was established whereby individual specimen samples will be destroyed upon the request of the donor. This requested destruction may occur following the conclusion of the donor's military service obligation.

These steps are designed to ensure the privacy and confidentiality of all individuals whose specimens enter the repository for subsequent typing. DNA identification of remains is state-of-the-art technology and offers survivors more expeditious response to any questions of identity, as well as more timely return of remains.

In closing, I want to reiterate the Department's strong belief in and support for confidentiality of medical records. Yet, I must underscore the military unique circumstances creating absolute necessity for national defense and mission effectiveness disclosures. Such disclosures must remain unimpeded. I believe the Department recognizes the need for its own judicious exercise of its authorities regarding medical record confidentiality, and that it will continually and carefully monitor each situation.

I very much appreciate this opportunity to share with you the Department of Defense's views and concerns regarding legislation applicable to confidentiality of medical records.