The massive federal stimulus law enacted last month includes unprecedented
funding to transition toward the use of electronic medical records. Privacy
protection measures—especially important to psychiatric care
patients—were included in the measure.
The American Recovery and Reinvestment Act of 2009 (ARRA, PL 111-5), signed
by President Barack Obama on February 17, includes provisions to encourage the
use of electronic health records (EHRs), health information technology (HIT,
which includes both the software and hardware needed to operate EHRs), and
The law, considered part of Obama's overall health reform effort (see
Stimulus Law Directs Funds to Health Care Improvement), requires the
government to take a leadership role in developing standards by 2010 that will
allow for the nationwide electronic exchange and use of health information
that aims to improve the quality and coordination of care. The measure
requires Department of Health and Human Services (HHS) officials to establish
interoperability standards, implementation specifications, and certification
criteria by December 31, as well as to provide financial resources to current
and future physician users of HIT systems.
The measure provides $19 billion for health information technology
infrastructure grants from HHS and for Medicare and Medicaid incentives to
encourage physicians, hospitals, and health care providers to use HIT for the
electronic exchange of patients' health information.
Community mental health centers are eligible for grants from HHS and
incentive payments under Medicare and Medicaid. Specifically eligible for
grants and incentive payments to upgrade their HIT systems are those community
mental health centers that meet federal criteria, child mental-health
programs, psychosocial rehabilitation programs, mental health peer-support
programs, and mental health primary consumer-directed programs.
In terms of funding, the law includes Medicare incentive payments for
physicians who adopt HIT, defined as "hardware, software, integrated
technologies or related licenses, intellectual property, upgrades, or packaged
solutions sold as services that are designed for or support the use by health
care entities or patients for the electronic creation, maintenance, access, or
exchange of health information."
The payments are up to $15,000 for the first payment year, with incentive
payments in subsequent years of up to $12,000, $8,000, $4,000, and $2,000,
respectively, ending in 2015. Physicians who report already using an EHR that
is also capable of e-prescribing will no longer be eligible for earlier
e-prescribing bonuses but will be eligible for HIT incentives.
Physicians who have already implemented HIT systems and those who adopt
them by 2012 will be eligible for an initial, larger incentive payment of up
to $18,000. By 2014 the maximum payment for physicians who begin using the
technology at that point will drop to $12,000.
Physicians in a federally designated rural health professional shortage
area will have their Medicare incentive payments for HIT increased by 10
Also included are incentives for eligible physicians, hospitals, federally
qualified health centers, rural health clinics, and other providers under
The incentive ends and penalties begin for physicians who accept Medicare
and have not adopted HIT by 2015, including a 1 percent reduction in Medicare
physician payments, increasing to a 3 percent reduction in 2017 and
Federal health officials can increase penalties up to a 5 percent reduction
in Medicare payments after 2018. The measure allows exceptions on a
case-by-case basis for "significant hardships," such as rural
areas without sufficient Internet access.
The new measure includes many features long advocated by APA that are
designed to strengthen federal privacy and security law, including protections
against misuse of identifiable health information. The privacy measures had
long been downplayed in the Senate, where the advancing legislation last year
emphasized creation of a nationwide EHR network despite privacy and
interoperability concerns. So inclusion of strong privacy measures in the
final stimulus measure was seen as a win for psychiatry and mental health care
Among the privacy measures is a new HIT Policy and Standards Committee that
will include public and private representatives, including physicians. The
committee will provide recommendations on the HIT policy framework, standards,
implementation specifications, and certification criteria for electronic
exchange and use of health information.
The law expands on the privacy and security provisions of the Health
Insurance Portability and Accountability Act (HIPAA) to protect patient health
information by defining which actions constitute a breach. Also, restrictions
have been added on certain disclosures, sales, and marketing of protected
health information. The law requires an accounting of disclosures to patients
upon request and authorizes increased civil monetary penalties for HIPAA
violations. State attorneys general also are authorized to enforce HIPAA.
The law expands HIPAA rules and penalties to "business
associates" of health care entities, such as the technology firms
involved in electronic records creation and data storage.
Another provision supported by APA establishes that physicians or others
sharing information with insurers or other payers must limit the information
to the "minimum necessary" to fulfill the request for information.
Insurers will no longer be allowed to decide what information is the minimum
necessary as the new law directs HHS to promulgate guidelines to define that.
A 2002 APA position statement called for such a "minimum
necessary" provision on information released to third parties to be a
part of federal medical privacy rules.
The "minimum necessary" provision of the law does not affect
the information physicians can share with other clinicians treating that
patient. Instead, the law serves as a floor for privacy rights, and some state
laws go beyond it to restrict information physicians can share with other
physicians, if requested by patients.
A "right to request" allows patients to request that physicians
not share their information with other medical providers, and if physicians
agree, they cannot later change their mind and release data from the period
during which they agreed to restrict such information.
Laura Fochtmann, M.D., chair of APA's Corresponding Committee on Electronic
Health Records, described the privacy protection provisions of the law as"
a major step forward."
"Confidentiality is at the heart of the therapeutic relationship
between a patient and a psychiatrist," Fochtmann told Psychiatric
News. "Without the means to preserve confidentiality—whether
it is in the paper record or the electronic record—there will be
additional impediments to developing a trusting and therapeutically beneficial
Patient privacy issues are not unique to psychiatry, Fochtmann said, but
psychiatrists have been at the forefront of calling attention to these
The text of the stimulus measure can be accessed at<http://thomas.loc.gov>
by searching on the law number, PL 111-5. ▪