Politics and Law

Insurance companies want us to be healthy. Really, they do. They have our interests at heart, and they defend those interests with an unusual zeal. This is why I am wondering which details might be missing from the tale of Natalie Blanchard.

According to the Associated Press, Blanchard, a 29-year-old IBM employee from Bromont, Quebec, was suffering from depression and took time away from work, relying on sick-leave benefits from her insurer, Manulife Financial.

The monthly payments were suddenly halted. When she called Manulife to ask why, she says she was told that it had espied photos on her Facebook page that showed her cheerful. Ergo, the argument allegedly went, she was able to work. Which led to the second ergo: no more payments.

The pictures, about which I am sure you are already wondering, were of her at a show featuring those tensing torsos, the Chippendales, as well as at a birthday party and on a beach holiday.

Depression is a nasty business. Cures are not exactly logical. And Blanchard says she went on three trips, each of a four-day duration, after consulting with her psychiatrist.

Manulife, while confirming (footage from Sky News embedded here) that it does use social-networking sites to, well, check up on its customers, also said, "We would not deny or terminate a valid claim solely based on information published on Web sites such as Facebook."

Perhaps you, too, have some questions. What sort of a life is it when you spend your days trawling social-networking sites to sniff around your customers' personal existence? How is it that Manulife observed Blanchard's photos? Did she leave her Facebook page entirely open, or could it be that she had her insurance agent as one of her Facebook friends? Was she, indeed, already under suspicion before the Facebook trawling began?

December 8, this case will be heard in the Quebec Superior Court. Surely, we will learn a little more about Natalie Blanchard and a little more about Manulife. Perhaps Facebook could provide a live feed from the proceedings?

This post was updated several times after 12:30 PDT with industry reaction.

President Barack Obama, in his weekly address Saturday, announced the appointment of Aneesh Chopra to serve as the nation's first chief technology officer.

Chopra, who is currently Virginia's secretary of technology, "will promote technological innovation to help achieve our most urgent priorities--from creating jobs and reducing health care costs to keeping our nation secure," Obama said.

Aneesh Chopra, Virginia's secretary of technology, is President Obama's pick for the nation's first chief technology officer.

(Credit: Virginia.gov)

At the same time, Obama also announced the appointment of executive and management consultant Jeffery Zients to be the administration's chief performance officer. Zients, along with Chopra "will work closely with our chief information officer, Vivek Kundra, who is responsible for setting technology policy across the government, and using technology to improve security, ensure transparency, and lower costs," the president said.

Chopra has led his commonwealth's "strategy to effectively leverage technology in government reform, to promote Virginia's innovation agenda, and to foster technology-related economic development," according to a White House press release.

Prior to his Virginia post, Chopra was managing director for the Advisory Board Company, where he advised executives on health care operations. That likely prepared him for Obama's proposed health care reforms, which focus heavily on information technology.

At the Congressional Internet Caucus Advisory Committee's State of the Net Conference in Washington earlier this year, Chopra talked of Virginia's initiatives to improve aspects of governance in areas like health care and education.

For example, Virginia was set to debut its physics "flexbook," comprised of Web-based instructional materials that cover areas of physics in which Virginia's traditional curriculum is lacking.

"You can make information more accessible, collaborate more, and people can do more to hold their elected officials more accountable," said Chopra, who was one of a team of volunteers serving on the Obama transition's technology, innovation and government reform police working group.

Although Chopra had reportedly been under consideration for months for a job in the administration and had put in long hours helping Obama's transition team, much of the speculation around the post surrounded candidates with Silicon Valley roots, as TechCrunch points out in a post with the headline, "Obama Spurns Silicon Valley Vets."

Others, like Tim O'Reilly, are praising Chopra as the perfect candidate due to his understanding of how to build a better government with the help of technology.

Mark Rutledge, director at McAfee's public sector business and former CIO for the state of Kentucky, also had strong praise. "Aneesh Chopra is a fantastic pick, he is a visionary and a great communicator. If I was looking for one person to bring change, and create energy he's the pick," he said in a statement

Gary Shapiro, president and CEO of the Consumer Electronics Association, also commended Obama for his choice. "Chopra is an excellent selection as he served proficiently in Virginia as Secretary of Technology and also has a strong background in the private sector advising the health care industry on technology management issues," he said in a statement. "He will bring to the position real world technology and public policy experience."

The Department of Defense and the Department of Veterans Affairs are creating a joint electronic medical record system to allow the two departments to share administrative and medical information, President Obama announced Thursday.

The Joint Virtual Lifetime Electronic Record project will track soldiers' lifelong medical histories beginning the day they enter service.

"Currently there is no comprehensive system in place that allows for a streamlined transition," Obama said. "That results in extraordinary hardship for an awful lot of veterans," such as lost records or delays in processing disability claims.

The VA is currently grappling with a six-month backlog in disability claims.

"This would represent a huge step towards modernizing the way health care is delivered...for our veterans," Obama said, noting that the system would follow the "strictest and most rigorous standards of privacy and security."

The new system would also represent a shift in health care services the president has pushed for all Americans. The American Recovery and Reinvestment Act allocated about $19 billion for the digitization of medical records. Electronic medical records is a burgeoning business for technology companies as they eye the digitization requirements hospitals and doctors' offices will soon be expected to meet.

Both the VA and the DOD, it was also announced this week, will be participating in Connect, an open-source gateway between multiple federal organizations and the proposed national health information network.

WASHINGTON--President Obama has called health information technology the "low-hanging fruit" of health care reform, but implementing the use of electronic medical records nationwide will be incredibly difficult, experts warned Wednesday, especially without larger health care reforms.

The Congressional Budget Office estimates (PDF) that the use of electronic medical records could save the nation $12.5 billion over 10 years, and other analyses give more optimistic figures.

At a forum here on Wednesday, hosted by the conservative think tank the American Enterprise Institute, health care providers and buyers attested to the improved quality of care and efficiencies that can result from the use of properly implemented electronic medical records. Yet without new policies to incentivize the use of health IT systems, the stimulus funds may go to waste, they said.

"We have an incredibly complex industry that doesn't necessarily want to change," said Joseph Swedish, president and CEO of Trinity Health, a nonprofit health care provider that includes 44 hospitals in its network. "I think the stimulus can prime the pump, but we have to recognize the daunting task ahead of us."

The American Recovery and Reinvestment Act directs health care providers to electronically record patients' health information for "biosurveillance and public health" and "medical and clinical research" as part of a "nationwide system for the electronic use and exchange of health information."

However, Swedish and other health care experts said providers will be reluctant to share data--or even use health IT systems in the first place--because of the pay-for-service structure and other institutional characteristics of the health industry.

Coordinators of a federal health care IT initiative have said developing a national health IT network will be extremely difficult and slow going because of the endless number of varying standards for medical health records applied in different states and localities.

Yet Benjamin Sasse, an assistant professor at the University of Texas at Austin, said Wednesday that providers themselves--not a lack of consistent standards--are the biggest roadblock to a nationwide health information exchange.

"The standards problems are absolutely real, but if you want a sticky patient, why would you ever make a patient portable and available to your competitor?" he asked. "Most of the reasons we don't have (health) IT have nothing to do with IT."

Trinity Health, along with Kaiser and the U.S. Department of Veterans Affairs, has one of the nation's largest integrated, single-platform data management systems and is using its repository of information to adopt more evidence-based treatment. However, Swedish said, Trinity is not sharing data with Kaiser or other providers.

"There are a lot of complexities with the sharing of data," he said. "I don't envision in the near term being able to work with others."

Trinity rolled out its health IT network in 2000 and incurred operational costs that greatly exceeded estimates, Swedish said, but also achieved more benefits than anticipated. Its hospitals, for instance, administer emergent medications 40 percent faster, and Trinity's nurses have increased their bedside attendance of patients by 8 percent now that they spend less time on paperwork.

"We have witnessed lowering costs and what we believe is better quality," he said. "We believe the investment is absolutely the right thing to do in the modern world we live in today."

Still, he said, the process took years to implement, the benefits would not have been possible with just the IT--a change in culture and staff processes was also necessary.

The economic structure of the health industry does not only deter providers from sharing information, but also from simply adopting health IT in the first place, Sasse said.

"Health IT is (part of) a much larger debate around payment reform that would provide much higher care than the fee-for-service system does today," he said.

WASHINGTON--With the incentives provided in the recently signed stimulus package for the adoption of health information technology, lawmakers across the country are expecting to be able to improve their states' health care by collaborating on a nationwide network of health data.

Creating such a network, however, is a dizzying prospect bogged down by conflicting state laws regarding privacy and patient consent, policymakers acknowledged Tuesday at a conference of the National Governors' Association's State Alliance for e-Health.

Laws and policies governing the use of electronic health information vary widely by state, and even within states different agencies interpret the jumble of rules on the books differently, said experts from the Health Information Security and Privacy Collaboration, a multistate collaboration established by RTI International.

Governors Jim Douglas of Vermont and Phil Bredesen of Tennessee, at a conference in Washington, considered the challenge of creating a nationwide policy for sharing health IT information.

(Credit: Stephanie Condon/ CNET Networks)

Indeed, members of the HISPC said, even their organization has had trouble interpreting the basic elements of the laws.

"At our very first meeting, we started talking about HIE (health information exchange), and we spent two and a half hours trying to decide if HIE is a noun or a verb," said Bill Mitchin, co-chair of the HISPC interstate and intrastate consent policies collaborative. "The answer is both."

To overcome the privacy and consent challenges that exist, Mitchin told policymakers on Tuesday that the states should develop either an interstate compact or language for a uniform law states could adopt to share electronic health information, rather than wait for federal statutes.

Before that can even happen, however, the states will have to work on merely documenting their current laws and policies that pertain to the privacy of health information.

"The laws can be scattered across state codes, and simply finding them can be a long process," said Kelly Coyle, co-chair of another HISPC group.

The HISPC is recommending that states clarify their positions on the terms for disclosing personal health information without patient consent, as well as what the terms should be for receiving patient consent. That information, the HISPC said, should be categorized based on the degree to which states require patient consent.

"If we could document our differences at different agency levels, that would provide us the foundation from which we could develop some consistent principles for moving forward," Mitchin said.

State lawmakers and health care representatives at Tuesday's conference balked at the HISPC's seemingly slow-moving suggestions.

"There must be another recommendation we can make other than to document chaos," said Reed Tuckson, executive vice president and chief of medical affairs for UnitedHealth Group.

"A whole industry could be created just to provide forms" for the process, he said. "This is insane."

Lawmakers and health care representatives also asked the HISPC to clarify why privacy issues were such a critical part of maintaining electronic health records.

"It seems to me there is a big concern about the digitization of data as separate, but if we have the right security measures, that data is no different from the data physically sitting in my office," said Herb Conway, a physician who sits on the New Jersey state legislature. "Are we going to be designing laws that interfere with our ability to have interoperability?"

Mitchin said that digitizing health information creates more potential uses for the information and therefore more potential privacy hazards.

"The data today in electronic form is being used in ways it's not being used in the manual process," he said. "Do you, as a consumer, understand that data's being sold for secondary uses? I'm not sure patients understand."

If states are to have a chance at an interstate compact for sharing health information, they will have to agree to let the compact trump some other state laws, Mitchin said. For instance, he said, states must acknowledge their constitutions have a limited basis of purpose on the issue of health IT, even if certain provisions might appear to be applicable to the subject.

"While we appreciate that different states have different rules, we're trying to find a way to streamline the process so patient treatment is not affected by delays in sharing information," he said.

commentary The U.S. Senate on Tuesday approved an $838 billion "stimulus" bill by a 61-37 vote, capping more than a week of political sparring between critics of the measure and President Obama, who claimed during a press conference that an "economic emergency" made it necessary.

What didn't come up during the president's first press conference was how one section of the convoluted legislation--it's approximately 800 pages total--is intended to radically reshape the nation's medical system by having the government establish computerized medical records that would follow each American from birth to death.

Billions will be handed to companies creating these databases. Billions will be handed to universities to incorporate patient databases "into the initial and ongoing training of health professionals." There's a mention of future "smart card functionality."

Yet nowhere in this 140-page portion of the legislation does the government anticipate that some Americans may not want their medical histories electronically stored, shared, and searchable. Although a single paragraph promises that data-sharing will "be voluntary," there's no obvious way to opt out.

"Without those protections, Americans' electronic health records could be shared--without their consent--with over 600,000 covered entities through the forthcoming nationally linked electronic health records network," said Sue Blevins, president of the Institute for Health Freedom, a nonprofit group that advocates health care privacy.

The Democratic politicians pushing this bill have far-reaching ambitions. The legislation (PDF) (on page 244, for the curious) hands to a still-to-be-named health care bureaucrat the "goal of utilization of an electronic health record for each person in the United States by 2014." Selecting official standards will be left to the Department of Health and Human Services (page 265).

The databases will, "at a minimum," include information on every American's race and ethnicity. They will be used for "biosurveillance and public health" and "medical and clinical research," both of which raise privacy questions. They will become part of a "nationwide system for the electronic use and exchange of health information."

Plus, the federal government will use its vast purchasing power--think Medicare and Medicaid--to compel adoption of e-records that meet government "standards and implementation specifications."

"Congress must close a number of the unnecessary and damaging loopholes designed by industry that have been added to the economic recovery package," said Ashley Katz, director of Patient Privacy Rights. PPR is especially concerned with a section of the Senate bill, which did not exist in the House of Representatives version, that may permit marketing literature and direct mail to be sent based on the contents of a patient's e-records.

Marc Rotenberg, director of the Electronic Privacy Information Center in Washington, D.C. says he believes PPR "is right to be concerned that the Senate bill would allow for the commercialization of confidential medical information. It changes the incentive structure in data collection."

Short-circuiting a gradual move toward e-health records
Many physicians are moving toward electronic health records for reasons of their own, including market pressure, convenience, and efficiency. This happens as old systems are being replaced or upgraded, questions about security find better answers, and doctors and their staff become more familiar with the technology.

The Centers for Disease Control and Prevention found, in response to a mail survey last year that 38.4 percent of physicians reported using full or partial e-records system, not counting billing. This is up from 25 percent in 2005.

In the absence of the so-called stimulus bill, doctors and companies have been gradually moving in that direction, individually weighing the costs against the benefits and choosing the technology that best suits their needs.

This is the gradual process that the Democrats who wrote the legislation, and sent it the floor without the benefit of a single hearing, hope to short-circuit. The bill punishes physicians who are not "meaningful users" of a government-certified e-record database, and specifies certain procedures and information exchanges that will "satisfy" the requirement.

Starting in 2015, government reimbursements to physicians who are not participating in the federal e-record effort will begin to decline.

HHS would be required by law to improve the adoption of e-records "over time by requiring more stringent measures of meaningful use."

Betsy McCaughey, the former lieutenant governor of New York and an adjunct fellow at the free-market Hudson Institute, wrote an opinion article this week that argues the e-records idea comes from Tom Daschle, who withdrew as a HHS nominee amid questions about his lobbying and nonpayment of income taxes.

"What penalties will deter your doctor from going beyond the electronically delivered protocols when your condition is atypical or you need an experimental treatment?" McCaughey wrote. "The vagueness is intentional. In his book, Daschle proposed an appointed body with vast powers to make the 'tough' decisions elected politicians won't make."

Twila Brase, a registered nurse and head of the Citizens' Council on Health Care, a grassroots group in St. Paul, Minn., says the "stimulus" bill should include explicit informed consent before sensitive and confidential patient records are injected into a national database.

"To protect the human, patient, and privacy rights of all Americans, the final stimulus bill must include an informed consent requirement," said Brase, who also warns that allowing federal officials to define "effective" care will lead to rationing of it.

There are two pro-privacy components of the "stimulus" package. The first says that e-records holders "shall have a right to obtain" a copy of their data in an electronic format. The second includes a notification requirement in the case of a data breach if the information is not encrypted--although, according to the definitions used, no notification is necessary is the unintentional disclosure was made "in good faith."

Also, a "policy committee" will be created inside HHS to devise "the implementation of a nationwide health information technology infrastructure." But of the 18 members, only one is required to have any knowledge of privacy and security matters.

Because the House version is different than the Senate's, negotiators from each chamber will meet to draft a final version, a process that has already begun.

The Department of Health and Human Services this week released new privacy guidelines (PDF) for electronic health records, the use of which President-elect Barack Obama has promised to support as part of his plan to jump-start the economy.

The use of electronic medical records could reduce costs and medical errors while potentially improving the quality of care patients receive, advocates say, but the level of new privacy standards needed for e-health records has been a matter of debate.

"Consumers need an easy-to-read, standard notice about how their personal health information is protected, confidence that those who misuse information will be held accountable, and the ability to choose the degree to which they want to participate in information sharing," HHS Secretary Mike Leavitt said Monday.

The eight principles established in the guidelines are intended to facilitate the adoption of e-health records by providing a consistent approach to questions of privacy and defining the responsibilities of those who have access to e-health records and share them through a network. The principles address issues of patient access; correction of records; openness and transparency; patient choice; limitations to the collection, use, and disclosure of personal health information; data integrity; safeguards; and accountability.

The HHS Office for Civil Rights also published new guidance documents explaining how the Health Insurance Portability and Accountability (HIPAA) Act can facilitate the exchange of information through e-records.

Privacy advocates at a meeting with Obama's transition team on Tuesday brought up the need for more stringent privacy standards for medical information. However, some members of the software industry, which strongly supports the adoption of e-health records, have said the HIPAA Act may provide sufficient privacy safeguards.

The new HHS guidelines state that "although the HIPAA Privacy and Security Rules apply to health information in electronic form, the current landscape of electronic health information exchange poses new issues and involves additional organizations that were not contemplated at the time the rules were drafted."