Tuesday, May 24, 2016
Dear CMS Acting Administrator Andy Slavitt,
The MACRA proposed rule requires extensive comment; therefore, I submit my daily dissent part three, focused on Pages 35-37. Section C (2)(b), Support for Health Information Exchange and the Prevention of Information Blocking, amends MACRA and requires that to be a meaningful use EHR user, an EP (Eligible Professional) must demonstrate to your agency that that he or she has not knowingly and willfully taken action (such as to disable functionality) to limit or restrict the compatibility or interoperability of your certified EHR technology. Your rules make corresponding amendments to MACRA applying this to hospitals and critical access hospitals as well. Your rules require us to make a three-part attestation:
- That we did not limit compatibility or interoperability of your certified EHR (AKA that we did not block you from getting into our system to steal our data or put yours in.)
- That we did implement technologies, standards, policies, practices, and agreements calculated to ensure that the certified EHR was at all relevant times connected (AKA whenever you want it) in accordance with applicable law, compliant with all standards applicable to the exchange of information, … and implemented in a manner that allowed for timely, secure, and trusted bi-directional exchange of electronic health information with patients, other health care providers, including unaffiliated providers, and with disparate certified EHR technology and vendors.
- That we respond in a timely manner to requests to retrieve or exchange electronic health information, including from patients, …and other persons, regardless of the requestor’s affiliation or technology vendor.
In other words, a doctor like me must sign documents promising to and then prove that I will grant interoperable, bidirectional exchange of my patients’ private data with any person, regardless of affiliation or technology vendor, to whom your agency says I must give the data. I must transmit this data quickly and must leave my system connected “at all relevant times”, in other words, whenever your agency wants access to the data.
First and foremost, I am a physician engaged in on-going, valid patient-physician relationships founded on the Hippocratic Oath of medical ethics and grounded in mutual trust. My duty is to my patients, not you and your overreaching executive branch agency. I have sworn an oath to keep my patients’ most private, intimate, sacred medical history confidential. My pledge is to keep my patients’ information from you not transmit it to you.
Through your rules, you are asking me to disavow my professional code of ethics and Hippocratic oath, betray my patients, and instead attest to you that I will give you and anyone of your choosing unfettered access to my patients private, protected health information health whenever you want it. Is this a joke? Why would I do this? For a bonus from you? To avoid a penalty from you? To avoid public humiliation when you give me a 0 for not complying with your rule and then you post my failing Composite Performance Score on your public CMS website?
Sorry to inform you, but not bribery, not threat of financial ruin, and not oppressive public humiliation will cause me to violate my professional ethics and lifelong commitment to my patients. You have grossly underestimated the integrity, heart, and soul of America’s physicians. What we and our patients share is beyond anything you and your agents of government have ever experienced nor can fathom. You should try it sometime. What is more troubling than the data you plan to extract and sell is the cookbook guidelines you plan to insert and require me to follow in the care of my patients. This rule is deplorable, outside the intent of the law, and a violation of humanity. Strike it out. More dissent to come tomorrow.