Professional Technicians Update.

A strident effort has been made to make the non-stimulus medical provisions insinuated into the president’s now $790 BILLION “stimulus bill” seem either forward thinking, or at least harmless. Well, let’s update that situation.

Stephen Daugherty, commenting on my previous article correctly points out that the "Office of Information Technology" which was supposedly being set up in H.R.1 has actually already been established by an executive order by George W. Bush. Furthermore some of the claims regarding the measure in a Bloomberg article written by former New York Leutenant Governor Betsy McCaughey were inaccurate.

David Remer also makes points about the potential benefits of electronic records in a medical system hobbled by horse-and-buggy record keeping.

That does not mean you should let your guard down. My key fear expressed in the previous article comments to the previous article, that the government can search your medical records with impunity if they are placed in electronic form, remain valid. From the current version of the bill (as of 11:00 A.M. Eastern time, Feb. 12th) Title XXX, Subtitle D, Sec. 13409,

CLARIFICATION OF APPLICATION OF WRONGFUL DISCLOSURES CRIMINAL PENALTIES.
`For purposes of the previous sentence, a person (including an employee or other individual) shall be considered to have obtained or disclosed individually identifiable health information in violation of this part if the information is maintained by a covered entity (as defined in the HIPAA privacy regulation described in section 1180(b)(3)) and the individual obtained or disclosed such information without authorization.'
I looked up the Website posting HIPAA guidelines and found that it focuses on wrongful use by companies and individuals, but does not cover many government entities and fails to address the federal government at all. It does not protect you from unreasonable search and siezure, nor does it establish your medical information as your personal property.

In as much as the Bush administration was the entity establishing this office I would think liberals would get chills just thinking about it. Knee-jerk defense of the Obama Administration has made their paranoia inconsistent at best, however.

Yes, we need electronic record keeping. My life, even as we speak, would easier if ready, secure, records transfers were available on demand. I, too, am in the process of changing medical providers. It is a hell of a task. But it is not, as Mr. Remer says, "Orwellian" to be concerned at the government's access to my records given that the government will soon be attempting to create a centralized healthcare solution for the whole country. If your fear is what insurers do with your records what makes the government a better insurer than any other?

Because of the ever-changing nature of the bill, and the manner in which the Library of Congress legislative search features work to make referencing particular passages of working bills impossible, those wishing to follow up on the bill will have to do their own subject search.
Below I have posted some key search terms. You can go to http://thomas.loc.gov to look up the most current wording of particular paragraphs.

Listed from-H.R.1
American Recovery and Reinvestment Act of 2009 (Engrossed Amendment as Agreed to by Senate)
`TITLE XXX--HEALTH INFORMATION TECHNOLOGY AND QUALITY
`SEC. 3004. PROCESS FOR ADOPTION OF ENDORSED RECOMMENDATIONS; ADOPTION OF INITIAL SET OF STANDARDS, IMPLEMENTATION SPECIFICATIONS, AND CERTIFICATION CRITERIA.
SEC. 3008. TRANSITIONS. (Obviously an attempt to quell furor over presence of this subject in a stimulus bill)
`SEC. 3009. RELATION TO HIPAA PRIVACY AND SECURITY LAW. (Essentially the same legal framework as outlined in the comments above.)
Subtitle D--Privacy
PART I--IMPROVED PRIVACY PROVISIONS AND SECURITY PROVISIONS
SEC. 13409. CLARIFICATION OF APPLICATION OF WRONGFUL DISCLOSURES CRIMINAL PENALTIES.
Section 1177(a) of the Social Security Act (42 U.S.C. 1320d-6(a)) is amended by adding at the end the following new sentence: `For purposes of the previous sentence, a person (including an employee or other individual) shall be considered to have obtained or disclosed individually identifiable health information in violation of this part if the information is maintained by a covered entity (as defined in the HIPAA privacy regulation described in section 1180(b)(3)) and the individual obtained or disclosed such information without authorization.'. (Remember, HIPAA does not apply to many local, state, and federal agencies. It does not protect you from unreasonable governmental search and seizure. My note)

Posted by Lee Emmerich Jamison at February 12, 2009 11:43 AM
Comments
Comment #275442

You need to close an italics tag somewhere. It’s gotten out of control.

Agree or disagree with you, you’re at least reasonable about things.

Here’s my impression. I said it before, but let me say it here for the record: I believe that the Fourth Amendment covers intrusion of government into private records, at least if there is no warrant, no probable cause. I don’t think that where such information would find its way into the Government’s hands that Medicare or other entitlements are short of rules concerning disclosure of private information, or official use beyond what its supposed to be used for.

Posted by: Stephen Daugherty at February 12, 2009 2:39 PM
Comment #275444

Stephen,
Recently, in the op-ed pages of the Wall Street Journal a discussion has sprung up on the subject of what some are calling “testilying”, a sort of wink wink police purjury that has proliferated since the establishment of Miranda protections. typically the lying involved is over the presence of drugs, perhaps “dropped” by a suspect which made a search “reasonable”. It exploits the legal difference between what is private and what is, or appears, public.

This is the issue I see here. At present the record of which we speak, while ostensibly private, are not even termed “private” in federal documents. They are called “individually identifiable”. That is not an accident. If they were called “personal” or “private” in legalese you would have a Fourth Amendment trigger when someone from the government sought to use YOUR records. Instead they are not YOUR records.

The records themselves can behave like that bag of marijuana that happened to conveniently fall out of your pocket when the police showed up at your door. They are public property, public behavior even though they are the record of a priviledged relationship.

(And, Stephen, thanks for pointing out the error on amendments in the other string.)

I also agree with you that such uses of the public electronic record should not pass Fourth Amendment muster, but when push comes to shove will a Supreme Court side with the text of the document, or will they, as courts did after Franklin Roosevelt outlived pre-New Deal conservatives, reverse the opinions of previous courts and mandate a more malleable meaning for the Constitution?

Why should we in the public politicize the courts by laying so much trust on as few as five fallible human beings when we could insist on clarity in the law itself?

Posted by: Lee Jamison at February 12, 2009 3:23 PM
Comment #275445

Fixed two tags. HTML is a bad typist’s nightmare.

Posted by: Lee Jamison at February 12, 2009 3:33 PM
Comment #275446

Okay, but has the privacy law changed? If not, then your argument should have been made a long time ago.

Posted by: womanmarine at February 12, 2009 4:31 PM
Comment #275449

womanmarine,
That’s not the point. The federal program only barely exists. Previous efforts at electronic records were privately managed and thus clearly fell under the ageis of HIPAA limitations.

The new program does not, only its private users will. Since HIPAA was devised to deal with privately held (mostly paper) records our records “safety net” has gaping holes in it.

Posted by: Lee Jamison at February 12, 2009 4:40 PM
Comment #275452

Lee Jamison-
We’re not talking about an act that creates a national health database. There’s nothing here to suggest centralization, only standardization, of the technology and the record sharing.

I don’t think the “testilying” reason is a credible excuse not to proceed with this necessary advance, any more than the real thing is good reason to forgo the protections of the bill of rights.

Posted by: Stephen Daugherty at February 12, 2009 7:42 PM
Comment #275455

Stephen,

We are communicating over a far-flung database devised from roots in National security. I don’t know about you, but I’d bet you lunch somebody involved with national security knows both our names.

Technically this is, none the less, not a national database. It has certainly proliferated in whay its founders never could have contemplated.

I’m not saying what we are launching into is necessarily a bad thing. What I’m saying is that if it is entered into without caution on the part of citizens it is quite capable of being a bad thing.

Posted by: Lee Jamison at February 12, 2009 8:57 PM
Comment #275460

“In as much as the Bush administration was the entity establishing this office I would think liberals would get chills just thinking about it. Knee-jerk defense of the Obama Administration has made their paranoia inconsistent at best, however.”

Very good point Lee. One the cat is out of the bag it is tough to get it to want to go back in. I am happy to see the conservatives finally looking at these privacy issues many of us have been worried about the past 8 years. I do wonder though, since so many of you guys on the right defended the previous administration whilst they set the bar so low on these issues, why worry now? If you seriously thought it couldn’t happen on your watch, or worse yet that your guy wouldn’t abuse the rights of American citizens why would you think the other side would. If you thought these constant pokes at the bill of rights would only serve to protect your fellow Americans from terrorist and criminals under the previous administration why change your mind now? Do you remember the conservative mantra we heard so often- If you are not doing anything wrong what do you have to be worried about? Well I guess this is exactly how these things happen, one little step at a time.
Myself, I will write to all of my representatives asking them what it is they intend to do to ensure that American citizens are protected from the government bureaucrats as well as the insurance companies detectives.

Posted by: j2t2 at February 13, 2009 1:07 AM
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