Samaritan Ministries member Twila Brase is president and co-founder of Citizens’ Council for Health Freedom, an organization organized to “protect health care choices, individualized patient care and medical and genetic privacy rights.” In her recent book, "Big Brother in the Exam Room," she explores government intrusion into patient privacy through electronic health records. We asked her some questions about EHRs and what you need to know about them.
Q: What’s wrong with electronic health records? Aren’t they a lot more efficient?
A: There are two kinds of electronic health records (EHRs): the kind essentially mandated and designed by the government to do what the government wants them to do—I call it the government EHR—and the kind that were developed by or for doctors that do what doctors and patients need them to do—private EHRs. The government EHRs are not made for patient care. They are made for billing, data collection, data reporting, physician profiling and data analytics, research, and control over the practice of medicine. The government EHR is a tool for control, not a tool for clinical care. As a result of financial penalties, the government EHR is in nearly 100 percent of the hospitals today and most clinics. It is not efficient, it detracts from the critical history and physical, it changes the focus of the visit from the patient to the “paperwork,” and it is the leading cause of physician burnout and what has been called “moral injury.” Many physicians are troubled by the ethical conflict that the EHR has created. The patient is no longer the primary point of the interaction. The EHR is. As physicians and nurses have often complained, their primary job is to tend to the computer. One recently retired nurse told me she spent 85-90 percent of each work day on the computer. This is not efficiency, quality, or good patient care.
Q: What options do medical providers have regarding EHRs? Can they opt out?
A: Physicians and other practitioners can opt out of the government EHR, but they will be paid less for every Medicare patient they see. Contracts with health plans may also mandate the use of a government EHR to receive electronic payment. In addition, if their patients are hospitalized, physicians will be forced to use the hospital’s government EHR.
Q: You write that “The real goal of this … project is … data mining, the control of the physician population, and the ultimate rationing and control of patient services.” How would government be able to accomplish that?
A: The government EHR in combination with the federal HIPAA (Health Insurance Portability and Accountability Act) no-privacy, data-sharing rule facilitates data-mining by countless outsiders. Although those who hold patient data are not required to share it, HIPAA permits disclosure and use of the patient’s identifiable data without patient consent. The federal government lists more than 702,000 clinics, hospitals, health plans, and other “covered entities” plus 1.5 million of their business associates who could have access without consent. These 2.2 million entities do not include all the government agencies with access without patient consent for a myriad of purposes, from public health to judicial proceedings to law enforcement. HIPAA is not and has never been a privacy rule, but its perception as a privacy rule is evidence of one of the greatest deceptions foisted on the American people.
The patient is no longer the primary point of the interaction. The EHR is.
The practice of medicine is now dictated by government-issued diagnosis and treatment codes, called CPT codes (Current Procedural Terminology) and “ICD-10” codes (International Classification of Diagnosis, 10th edition). Hospitals that purchase EHRs can determine which codes, and thus treatments, are available in their hospital’s EHR. If a code for the physician’s preferred treatment is not available in the hospital EHR, it becomes very difficult for that treatment to be ordered. Hospitals, which are now assuming more and more of the financial risk of patient care under the Affordable Care Act (essentially taking on the function of an insurer) can use the EHR to control and limit the treatment options available at their facilities and, in doing so, reduce expenditures.
In addition, the federal government requires data reporting to track physician compliance with a bevy of government-approved treatment protocols. Physician compliance yields better “quality” scores for the physician and the hospital. However, such one-size-fits-all compliance may not be best for patients. Given how payment is tied to performance and government-defined “quality” scores, many physicians feel compelled to comply with these outside directives.
Q: Are you finding doctors who are pushing back on EHRs?
A: Yes, there are physicians who have shut down their EHRs and gone back to paper. One clinic, the Illinois Pain Institute, took a vote and unanimously decided to get rid of the EHR. Cash-based, direct-pay physicians who have joined The Wedge of Health Freedom have either returned to paper or restored their private EHRs.
Q: What is the No. 1 harmful effect of government EHRs?
A: The government EHR has allowed self-interested outsiders to take control of the practice of medicine, endangering patient safety, placing physicians in ethical turmoil, jeopardizing medical excellence and creativity, and advancing a government-controlled health care system.
Q: What should I say to a doctor who tends to me while holding and paying attention to a laptop?
A: First, ask the doctor why he or she is so focused on the computer rather than on you. Second, ask where all the data is going and ask for a list of all the entities that receive access to the data or to whom the data is sent, and for what purposes. This reminds me to mention that patients should consider refusing to answer all the pre-visit questions, whether that’s a paper questionnaire, a questionnaire in the patient portal, or collected through an electronic tablet at the clinic. They should refuse entirely or only answer the questions they feel comfortable with or that actually pertain to the purpose of the visit. Keep in mind that all your answers will be added to your profile, and, unless your state has a strong state privacy law (like the one in Minnesota which requires specific consent for data-sharing), HIPAA allows every answer to be shared with countless entities without your consent. Third, you may also want to ask the physician to send the scribe out of the room so your discussion is not overheard and recorded in detail by the scribe. Finally, ask your physician whether the treatment he or she orders is the best treatment for you or the one that will give the physician the best “quality” score for compliance with a standardized treatment directive—or whether it’s the only one available in the EHR (computer).
Q: What would be the best resolution concerning EHRs?
Congress should repeal all penalties and “quality” measurements related to use of a government EHR. Payment should not be tied to the EHR. Patients should have their right of consent for data-sharing restored. And, until and even if the federal government repeals HIPAA, state legislators should enact real medical privacy and patient consent laws, as exemplified by the privacy-protecting Minnesota Health Records Act.
You can learn more about your rights as a patient at CCHfreedom.org.