Doctor's Orders?

Since her column was one of the first to make such assertions and was the source for others' claims, and since it cites specific pages in the House bill, we'll take a close look at the claims she makes. It's important to remember that McCaughey's is an opinion piece, and as Bloomberg News notes in the bio, "the opinions expressed are her own." Still, she gets some facts wrong, and often gives the incorrect impression that her view of what the bill could mean is what the bill actually says.

The 'New' Bureaucracy Was Created by Bush
McCaughey acknowledges that "having electronic medical records at your fingertips, easily transferred to a hospital, is beneficial." In fact, both Republicans and Democrats have talked about the value of electronic records and the ability to cut down on duplicate tests or bad drug interactions, and to increase prevention efforts. President Barack Obama has set a goal of having every American's health records computerized in five years. President George W. Bush, too, said everyone should have electronic records by 2014, and he pushed the technology through incentive payments to physicians and other measures. When we talked with McCaughey, she reiterated that there were many benefits to be gained from such technology: "I'm all for electronic medical records," she said.

In her column, McCaughey says that the stimulus bill creates "one new bureaucracy, the National Coordinator of Health Information Technology." Not true. The office has been in existence for nearly five years. In fact, it was President Bush who created it by executive order in April 2004. The current national coordinator, Dr. David J. Brailer, was appointed that year. (Correction published Feb. 24: A new national coordinator, Dr. Robert M. Kolodner, was appointed in 2007.)The office is charged with setting standards for an interoperable health IT system and encouraging doctors and hospitals to switch to electronic record-keeping. The stimulus legislation calls for funding for this office, includes more detail on its duties, and makes it permanent in law.

McCaughey further claims that the national coordinator "will monitor treatments to make sure your doctor is doing what the federal government deems appropriate and cost effective." She highlights the word "guide" from the stimulus legislation, writing: "The goal is to reduce costs and 'guide' your doctor's decisions." But that language in the new law is virtually identical to Bush's executive order in 2004.

Both Bush's 2004 executive order and the new legislation lay out various duties and goals for the national coordinator. The bill lists 11 characteristics a national health IT infrastructure should have, such as "improves health care quality, reduces medical errors ... and advances the delivery of patient-centered medical care." One of the criteria is "provides appropriate information to help guide medical decisions at the time and place of care." That's also the very first criteria in Bush's executive order:

Executive Order 13335, April 27, 2004: In fulfilling its responsibilities, the work of the National Coordinator shall be consistent with a vision of developing a nationwide interoperable health information technology infrastructure that: (a) Ensures that appropriate information to guide medical decisions is available at the time and place of care

McCaughey writes that "these provisions in the stimulus bill are virtually identical to what [former Health and Human Services Secretary nominee Tom] Daschle prescribed in his 2008 book." That may be, but she neglects to say they are also virtually identical to the executive order that has been in effect for nearly five years. And there's nothing in the law that says the national coordinator will "make sure your doctor is doing what the federal government deems ... cost effective."

No "Mandate"
McCaughey insisted to us that a "critical difference" between the office created in 2004 and this "new enterprise" is that "now the use of these technologies is mandatory." But that's not true either. The bill doesn't legally require hospitals or doctors to adopt electronic medical records.

When pressed, McCaughey pointed to several phrases in the bill that repeat Obama's goal to have electronic records for "each person" in the U.S. But setting a goal is not the same thing as creating a legal requirement. And anyway, the Bush administration's stated goal was identical: "Within ten years, every American must have a personal electronic medical record," Bush said in April 2004, in first announcing his goal. (For the record, at other times he said "most Americans.") 

McCaughey is on firmer ground when she notes that hospitals and doctors will face penalties if they do not become "meaningful users" of the new system. What the legislation does is to provide, through Medicare and Medicaid payments, financial incentives for doctors and hospitals that adopt the technology, and penalties through Medicare for those who don't. But it's a carrot-and-stick approach that relies mostly on carrots: The first year incentive payment for doctors through Medicare, for instance, is up to $18,000 if they can demonstrate "meaningful use" of electronic records by 2011 or 2012.

Penalties for those who fail to adopt the technology wouldn't kick in until years later. Medicare payments to medical professionals that fail to use electronic records would be reduced by 1 percent in 2015, and ultimately by three percent in 2018. (There would be no reduction in Medicaid payments, however.) The HHS secretary could increase the Medicare discount even more after 2018 if by that time less than three-quarters of medical professionals are using electronic records. But even in that event, the Medicare penalty for failure to adopt electronic records couldn't go higher than 5 percent. The law also allows for hardship exemptions.