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Terence Jeffrey / February 18, 2009

What Obama Is Doing With Your Medical Records

The so-called “stimulus” President Obama signed Tuesday is so unwieldy it had to be posted in two PDFs on the House Appropriations Committee’s Website along with another two containing an “explanatory statement.”

The law totaled 1,071 pages; the explanation, 421.

Yet, 216 of the law’s 1,071 pages deal with a project not directly aimed at short-term economic stimulus, and these 216 pages were themselves divided into two distinct parts (139 pages in “Division A” of the law and 77 pages in “Division B”).

Together, these 216 pages provide the legal framework for collecting every American’s personal medical records into a federally coordinated electronic system.

As first pointed out in a Feb. 9 commentary by former New York Lt. Gov. Betsy McCaughey, it is reasonable to assume that this electronic-records system, together with a provision that creates a “Federal Coordinating Council for Comparative Effectiveness Research,” sets the stage for the creation of a nationalized health-care system that engages in British-style rationing.

But even if Congress and the president restrain themselves and pass no further law in pursuit of socialized medicine for the United States, the provisions already enacted in this law raise significant questions about the right to privacy and the right of doctors to practice medicine according to their best judgment.

Division A includes a section called “Title XIII – Health Information Technology,” which provides for “the development of a nationwide health information technology infrastructure.”

In the law’s jargon, this infrastructure is supposed to allow for the “enterprise integration” of the “qualified electronic health record” of “each person in the United States by 2014.”

What do “qualified electronic health record” and “enterprise integration” mean? A “qualified electronic health record,” the law says, “means an electronic record of health-related information on an individual that – (A) includes patient demographic and clinical health information, such as medical history and problems lists; and (B) has the capacity – (i) to provide clinical decision support; (ii) to support physician order entry; (iii) to capture and query information relevant to health care quality; and (iv) to exchange electronic health information with, and integrate such information from other sources.”

This mandate that your “electronic health record” (EHR) be able to communicate with “other sources” goes to the definition of “enterprise integration.” This term, the law says, “means the electronic linkage of health care providers, health plans, the government and other interested parties to enable electronic exchange and use of health information among all the components in the health care infrastructure in accordance with applicable law.”

The law directs an existing bureaucracy created by President Bush (the “Office of the National Coordinator for Health Information Technology”) to put together a plan for building this system so that it achieves the “utilization of an electronic health record for each person in the United States by 2014.”

In plain English: Over the next five years, the Obama administration intends to create a federally run electronic exchange that includes every American’s “medical history and problems lists.”

Now, before you run out to the nearest federal office and sign up to put the “medical history and problems” lists for yourself, your spouse and your children into the government’s “nationwide health information technology infrastructure,” you should know the law does not require you – as an individual – to do this.

The “explanatory statement” for Division A explains this. “To the extent that this section calls the national coordinator to ensure that every person in the United States have an EHR by 2014, this goal is not intended to require individuals to receive services from providers that have electronic health records and is aimed at having the national coordinator takes steps to help providers adopt electronic health records,” says the explanation. “This provision does not constitute a legal requirement on any patient to have an electronic health record.”

But if the national coordinator cannot make you – an individual – submit your records to the system, how is the poor guy going get “an electronic health record for each person in the United States by 2014”?

This mystery created by 139 pages in Division A is solved by the 77 pages in Division B: The secretary of health and human services is given a carrot and stick to make doctors and hospitals create EHRs for their patients. Doctors and hospitals that make “meaningful use” of EHRs by the deadline get bonus payments from Medicare. Those that do not get diminishing Medicare payments.

What is “meaningful use”? That is at the discretion of the secretary of HHS, but the law says it will include “electronic prescribing,” “the electronic exchange of health information to improve the quality of health care” and submitting information “on such clinical quality measures and such other measures as selected by the secretary.”

Lastly, the law directs the secretary to ratchet up the “meaningful use” test as time goes on. Or as the “explanation” politely puts it: “The secretary would seek to improve the use of electronic health records and health care quality by requiring more stringent measures of meaningful use over time.”

In other words, once the secretary has your medical file in the system, he is supposed to make your doctor do ever more with it at his command.


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