Obama's Electronic Health Records Czar: HIV Status and Abortions Need Not be Included

By Matt Cover | July 21, 2010 | 4:12 PM EDT

Dr. David Blumenthal, National Coordinator for Health Information Technology, is the official at the Department of Health and Human Services responsible for the electronic health records program. (HHS photo)

(CNSNews.com) – Dr. David Blumenthal, the Obama administration's National Coordinator for Health Information Technology, said on Tuesday that patients can choose to omit procedures such as abortions and positive HIV tests from the electronic health records (EHR) that every American is supposed to have by 2014 under the terms of the economic stimulus law that President Barack Obama signed last year.

Blumenthal's office, a subdivision of the Department of Health and Human Services, was created by the stimulus law specifically to generate the standards and regulations that will govern the federally mandated use of EHRs.

Section 3001 of the stimulus law charges the National Coordinator for Health Information Technology with overseeing the "development of a nationwide health information technology infrastructure that allows for the electronic use and exchange of information" that, among other things, "reduces health care costs resulting from inefficiency, medical errors, inappropriate care, duplicative care, and incomplete information" and "provides appropriate information to help guide medical decisions at the time and place of care."

The law requires Blumenthal's office to set "specific objectives, milestones, and metrics with respect to the  following: (i) The electronic exchange and use of health information and the enterprise integration of such information. (ii) The utilization of an electronic health record for each person in the United States by 2014."

In order to get hospitals, doctors and other health care providers to comply with the creation of EHRs for "each person in the United States by 2014," the stimulus law provided for federal bonus payments to be made to providers who generate records complying with the federal standards by 2014. Health care providers that do not use EHRs that meet the federal standards by 2014 will have their Medicare and Medicaid payments progressively diminished as a penalty for failure to comply.

Last week, Blumenthal held a press conference with HHS Secretary Kathleen Sebelius and Dr. Donald Berwick, the recently recess-appointed head of the Centers for Medicare and Medicaid Services(CMS), to announce the final regulation for the EHRs.

The regulations state that a user must be able "to create an electronic copy of a patient's clinical information, including, at a minimum, diagnostic test results, problem list, medication list, medication allergy list, and procedures" and that this electronic information must be in a "human readable format." 
In an interview videotaped on Capitol Hill on Tuesday, CNSNews.com asked Blumenthal whether abortions and HIV tests must be included in an EHR, as the new regulations, on their face, seem to suggest.

“The regulations that came out state that hospitals and doctors have to provide problems lists, medications [lists], diagnostic test results, copies of those things in the electronic health record," said CNSNews.com. "Does that mean that a test result like, say, an HIV test or a procedure like an abortion would have to go on an electronic health record”
Blumenthal said, “Any specific information recorded in the record is an issue between the doctor and the patient, not an issue that this regulation specifies.”

CNSNew.com followed up: "So, when it says a 'test result,' if they did an HIV test they wouldn't have to put it in the record?"

"It's between the doctor and the patient," said Blumenthal.

CNSNews.com asked: "So what does have to go in there?"

"The information that the patient and the physician agree needs to be in the record," said Blumenthal.

CNSNews.com asked: "So you can say, 'I don't want this in my health record, I don't want that in my health record, in my EHR'"?

Blumenthal responded: "Exactly the same thing in the paper world would pertain in the electronic world." 

Before speaking with Blumenthal, CNSNews.com asked the Department of Health and Human Services (HHS) via email whether abortions and STDs must be included in the new EHRs, and if abortions and STDs need not be included what other surgical procedures and diseases could be excluded from the EHRs.  If in fact abortions and STDs could be excluded from the EHRs, CNSNews.com also asked HHS to point out where specifically the law exempted abortions, STDs or any other procedures or diseases from being included in the records.

Peter Garrett, the spokesman for HHS's Office of the National Coordinator for Health Information Technology, responded by email.

“Nothing in the HITECH electronic health record regulations or in our policies touches on or requires the recording of any particular type of health information in a particular patient's personal health record,” Garrett said in an e-mail. 
“That is between the doctor and patient,” Garrett wrote. “The EHR incentive program is a voluntary program. If a physician chooses to participate, they are not required to record any specific type of health information and the physician needs the patient's consent in order to record any of their personal health information. As with all medical records, protecting the privacy of patients' heatlh information is a top priority and informational privacy will continue to be protected as EHRs become more widely used.”
The “incentive program" Garrett refers to is the system of bonus payments the government will make to health care providers that implement EHRs by 2014.  Garrett did not mention the penalty system that diminishes a health-care provider's Medicare and Medicaid payments if it does not comply with the EHR mandate by 2014.  As the January 13, 2010 edition of the Federal Register noted: "Section 1848(a)(7) of the Act provides that beginning in CY 2015, EPs who are not meaningful users of certified EHR technology will receive less than 100 percent of the fee schedule for their professional services."

Electronic Health REcord sample (Wikipedia Commons)

According to CMS’s own regulations issued on July 13, doctors and hospitals must demonstrate “meaningful use” of EHRs to qualify for federal subsidies before 2014.
Among the regulations that Dr. Blumenthal issued last week for health-care providers seeking to demonstrate that they are engaging in “meaningful use” of EHRs is that they: “Maintain an up-to-date problem list of current and active diagnoses."

The regulations also require the EHRs to include a patient's "problem list" as well as "procedures." 

What a "problem list" must entail is defined in separate federal regulations – referenced in those issued by Dr. Blumenthal on July 13. These regulations say such a list will include: “(i) Diseases. (ii) Injuries. (iii) Impairments. (iv) Other health problems and their manifestations. (v) Causes of injury, disease, impairment, or other health problems.” 
"Procedures" are defined as actions taken with regard to: “(i) Prevention. (ii) Diagnosis. (iii) Treatment. (iv) Management,” of those things listed on the problems list.