Q: Will doctors be required to ask patients questions about their sexual history under the Affordable Care Act?
A: No. A program created by the stimulus law – not Obamacare — encourages health professionals to use electronic records. But there is no requirement in the program to ask anything about sexual history.
As a requirement of the ACA, will doctors be required to ask questions related to patients’ sexual activities, even if they are not related to the office visit? Will doctors be penalized financially for not obtaining the information?
The false claim that doctors will be required to ask questions about their patients’ sex lives originated in a Sept. 15 New York Post op-ed written by Obamacare critic Betsy McCaughey. (Our readers may remember McCaughey as the source of the bogus claim that health care legislation in the House called for mandatory counseling for seniors “to do what’s in society’s best interest … and cut your life short.”) Her op-ed, headlined “Obamacare will question your sex life,” claims that “[t]he president’s ‘reforms’ aim to turn doctors into government agents, pressuring them financially to ask questions they consider inappropriate and unnecessary.”
McCaughey, Sept. 15: “Are you sexually active? If so, with one partner, multiple partners or same-sex partners?”
Be ready to answer those questions and more the next time you go to the doctor, whether it’s the dermatologist or the cardiologist and no matter if the questions are unrelated to why you’re seeking medical help. And you can thank the Obama health law.
But that’s false. McCaughey says these questions are part of government requirements for health care professionals to receive incentive payments for using electronic health records. But doctors are not required to ask these questions in order to receive such payments, and the incentive program wasn’t part of the Affordable Care Act.
The Medicare and Medicaid Electronic Health Records (EHR) Incentive Programs were created by the American Recovery and Reinvestment Act of 2009 (also known as the stimulus act). Under the stimulus legislation, the incentive programs were set up to “promote the adoption of EHRs [electronic health records] in support of the ultimate goals of improving the quality of patient care and reducing health costs,” says a fact sheet from the Centers for Medicare & Medicaid Services. The incentive programs provide payments through Medicare and Medicaid to eligible health care professionals and hospitals as they “adopt, implement, upgrade or demonstrate meaningful use of certified EHR technology,” according to CMS.
President Obama and his predecessor, President George W. Bush, have pushed for wider adoption of electronic health records to improve care and lower costs by helping to reduce medical errors, eliminate duplicate tests, coordinate care and enable patients to get copies of their records easily. When he was campaigning for president, Obama cited a Rand Corp. study that said $77 billion per year could be saved with widespread use of EHRs. The Congressional Budget Office was critical of that study, and a 2013 Rand analysis said data on the impact of EHRs were “mixed.” It said the “disappointing performance” in terms of cost savings so far was due to slow adoption of the technology and the inability of some systems to communicate with one another.
Under the stimulus act’s incentive programs, doctors could receive up to $44,000 in incentive payments over five years under the Medicare program, and up to $63,750 over six years under the Medicaid program. Most hospitals can participate in both programs, but doctors and health care professionals have to pick one.
In order to receive the payments, health care professionals have to demonstrate “meaningful use” of electronic health records, and there are several requirements. Asking about sexual activities isn’t one of them, according to CMS. A spokesperson told us :
Rachel Maisler, CMS spokesperson, Sept. 18: Betsy McCaughey’s article is grossly inaccurate. Under no circumstances would your doctor or health care provider be required to ask you about your sexual activity or partners to demonstrate meaningful use to receive an EHR incentive payment.
McCaughey wrote that Adam Budzikowski, a New York cardiologist, “knows he’ll be pushed to ask” his patients sexual questions that he called “insensitive, stupid and very intrusive.” We spoke with Budzikowski, who told us that “at the end of the day, there will be financial penalties for not reporting these quality measures.” He told us he finds the questions “unpleasant.”
But we found that these questions are not part of the “quality measures” that doctors can report to CMS in order to receive incentive payments. After researching the issue, we called Budzikowski with follow-up questions, but he has not yet returned our call.
There are two stages of the EHR Incentive Programs: First, eligible health care professionals and hospitals would meet requirements in Stage 1, and in later years, Stage 2. In Stage 1, doctors and other health care providers can demonstrate meaningful use by recording health information electronically. They must meet several objectives (14 core objectives and five out of 10 other objectives), such as using electronic prescription orders, maintaining a list of current diagnoses, maintaining a medication list and medication allergy list, recording patients’ vital signs, and recording the demographic information of patients. These demographics include preferred language, gender, race, ethnicity and date of birth. Doctors also must protect electronic health information.
The second stage requires doctors to meet further requirements, such as communicating with patients through secure electronic messages and providing them with clinical summaries, recording data on lab tests, and being able to submit information to immunizations registries. Doctors and other health care providers must meet 17 core objectives and three out of six other objectives.
Catherine DesRoches, a senior survey researcher with Mathematica Policy Research, is an expert on health information technology and oversees a study on the meaningful use of such technology. She told us that she was very familiar with the Stage 1 and Stage 2 requirements, and that “there’s nothing in there that requires physicians to ask about sexual history.”
DesRoches says it’s possible electronic records could be customized to include fields for such questions for doctors who regularly ask about sexual history. “I wouldn’t be surprised if there were records that allowed you to do that,” she said.
Health care professionals also must report a number of clinical quality measures. There are 64 clinical quality measures to choose from in Stage 2, and doctors must report on nine. Quality measures require doctors to report aggregate data on a wide variety of health topics. For example, doctors can report the “percentage of women 40-69 years of age who had a mammogram to screen for breast cancer.” Or doctors could choose to report the percentage of patients receiving an influenza immunization.
We looked through all 64 quality measures and the only one related to sexual activity was a measure of the percentage of women aged 16 to 24 who were “identified as sexually active” and had been screened for chlamydia. Again, doctors pick nine out of the 64 quality measures to report.
Moreover, CMS told us that no personally identifiable information about patients is being collected by the government for this program. Providers attest that they have met the meaningful use objectives and measures using aggregate data.
— by Justin Cohen, with Lori Robertson
McCaughey, Betsy. “Obamacare will question your sex life.” New York Post. 15 Sep 2013.
EHR Incentive Programs. CMS.gov. accessed 24 Sep 2013.
More than Half of Doctors Now Use Electronic Health Records Thanks to Administration Policies. WhiteHouse.gov. accessed 24 Sep 2013.
Additional Information Regarding EP Clinical Quality Measures for 2014 EHR Incentive Programs. CMS.gov. accessed 24 Sep 2013.
Eligible Professional Meaningful Use Table of Contents Core and Menu Set Objectives Stage 1. CMS.gov. accessed 24 Sep 2013.
Stage 2 Eligible Professional (EP) Meaningful Use Core and Menu Measures Table of Contents. CMS.gov. accessed 24 Sep 2013.
How to Attain Meaningful Use. HealthIT.gov. accessed 24 Sep 2013.
Medicare and Medicaid Programs; Electronic Health Record Incentive Program. FederalRegister.gov. accessed 24 Sep 2013.
A Record of Progress on Health Information Technology. CMS.gov. 23 Apr 2013.
Spokesperson, Centers for Medicare and Medicaid Services. Emails sent to FactCheck.org. 18 and 23 Sep 2013.
Henig, Jess and Lori Robertson. “Obama’s Inflated Health ‘Savings.’” FactCheck.org. 16 Jun 2008.
Kellermann, Arthur L. and Spencer S. Jones. “What It Will Take to Achieve the As-Yet-Unfulfilled Promises of Health Information Technology.” RAND Corporation. Jan 2013.
Budzikowski, Adam. Interview with FactCheck.org. 17 Sep 2013.
DesRoches, Catherine, senior survey researcher, Mathematica Policy Research. Interview with FactCheck.org. 1 Oct 2013.