June 17 2011
The Left and Right will continue to fight about the many new provisions of Obama's health care reform law... After all, it is a really big (2000-page), really bold piece of legislation. We hear about a lot of it all the time: the individual mandate to obtain health insurance, new regulations for employers and insurers, cuts to Medicare and the creation of the Independent Payment Advisory Board (IPAB)... But one part of the law that's been less talked about is the part that will change patient privacy through the creation of and easy access to a national database of electronic health records.
The stimulus legislation allocated billions for incentive payments to doctors and hospitals to become part of [a national electronic health database that will hold and display your lifelong medical history]. In 2015, those incentives get replaced with penalties on the doctors and hospitals that haven't complied. And Section 1311 of the Obama health law says that private health plans can pay only doctors who implement whatever the federal government dictates to improve "quality." This is the first time the federal government has asserted a broad power to control how doctors treat privately insured patients.
Before the Obama health law, patients who voluntarily bought insurance shared information with their insurer. Now, government regulators will have access to oversee physician compliance.
This is pretty intrusive, not just for patients, but for doctors as well. Doctors value their autonomy in treatment decisions, and already face grave consequences for bad choices (malpractice suits... not to mention harming a patient's health!).
Clearly, there are some advantages to electronic records. Consolidating information in the right place and making it available to the right people could save time, money, and even lives! But why not make it so patients could consent to making this information available? McCaughey notes this too:
The advantage of an electronic medical record is obvious. When you need emergency care, a doctor can get information about your past illnesses, tests and treatments with the click of a mouse. It will reduce testing, save money and sometimes save a life. But there are dangers.
Federal proposals to protect privacy have been half-hearted. On May 31, the Health and Human Services Department proposed allowing patients to request a report on who has electronically viewed their information.
After the fact is too late. Patients should have to give consent before their doctor links their record to a nationwide database, says the New York Civil Liberties Union.
McCaughey goes on to mention a lawsuit filed by the Goldwater Institute that challenges the Constitutionality of releasing medical records in this way. In fact, there have been at least five lawsuits filed by different parties that point to health privacy concerns and potential violations of the Fourth Amendment.
This provision, like so many in ObamaCare, treats people like we are "the average patient." To quote Dr. Jason Fodeman, former health policy analyst for the Heritage Foundation (and now a resident at UCONN), "Physicians need the flexibility to treat, not the average patient, but the actual patient." The actual patient is a person, and we should work toward a health policy that respects his or her privacy!