Note: Previous versions referred to Rand Paul as the author of the first congressional rider. That was in error. The first rider was authored by then Representative Ron Paul. I regret the error. CB
Last month, I posted that Ron Paul’s gag rule on a national patient identifier was gone. Shortly, thereafter, Brian Ahier noted that the gag rule wasn’t dead. It just used different words. Now, it looks as if we were both right and both wrong. Here’s why. Paul’s rider’s gone, but its replacement, though daunting, isn’t as restrictive.
The gag rules are appropriation bill riders. Paul’s, which began in 1998, was aimed at a HIPAA provision, which called for identifiers for:
…. [E]ach individual, employer, health plan, and health care provider for use in the health care system. 42 US Code Sec. 1320d-2(b)
It prohibited “[P]lanning, testing, piloting, or developing a national identification card.” This was interpreted to prohibit a national patient id.
Sec. 510. None of the funds made available in this Act may be used to promulgate or adopt any final standard under section 1173(b) of the Social Security Act providing for, or providing for the assignment of, a unique health identifier for an individual (except in an individual’s capacity as an employer or a health care provider), until legislation is enacted specifically approving the standard.
Gag Rule’s Replacement Language
Unlike Paul’s absolutist text, the new rider makes Congress the last, biggest step in a formal ID process. The new language lets ID development go ahead, but if HHS wants to adopt a standard, Congress must approve it.
This change creates two potential adoption paths. Along the first, and most obvious, HHS develops a mandatory, national patient ID through Medicare, or the Meaningful Use program, etc., and asks congress’ approval. This would be a long, hard, uphill fight.
The second is voluntary adoption. For example, NIST could develop a voluntary, industry standard. Until now, Paul’s rider stopped this approach.
NIST’s a Consensus Building Not a Rulemaking Agency
NIST’s potential ID role is well within its non regulatory, consensus standards development mandate. It could lead a patient ID building effort with EHR stakeholders. Given the high cost of current patient matching techniques, stakeholders may well welcome a uniform, voluntary standard. That would not solve all interoperability problems, but it would go a long way toward that end.
Congress has loosened its grip on a patient ID, now its up to ONC, NIST, etc., to use this new freedom.