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Health Freedom Watch
January 2009


Economic Stimulus Package and Your Health Privacy

How Would the Proposed $100 Billion Spending on Electronic Medical Records Projects Affect You?

What does Barack Obama’s economic stimulus package have to do with your health privacy?  A lot!  If Obama creates electronic medical records for most Americans (as he’s proposing) without first fixing the federal health privacy rule (to ensure patient consent), everyone would end up losing control over his or her personal health information.  That’s because the rule gives many entities the legal authority to share information without patients’ consent for purposes related to healthcare treatment, payment, and overseeing the healthcare system. (See “What Every American Needs to Know about the HIPAA Medical Privacy Rule.”) 

Obama is seeking support for a massive emergency spending package, warning that the U.S. recession could stretch on for years unless such steps are taken. A January 8 Reuters report noted that “Obama also wants to spend to help the healthcare industry create electronic medical records.  Well over $100 billion could be spent on the various [electronic medical records] projects.” reports that Obama’s “audacious plan” is to “computerize all health records within five years.” [Emphasis added.] 

Obama would thus be advancing the health IT goals of the Bush administration.  Its last budget set access to electronic health records as an objective to be achieved by 2014.  Moreover, the Bush administration’s Health and Human Services Secretary Michael Leavitt called for the creation of “one nationwide, interoperable [health IT] system” in a December Washington Post op-ed. [Emphasis added.] 

The current HIPAA law would govern a nationally linked database.  However, it is important to understand that “HIPAA was never intended for the digital age, because the [1996 HIPAA law] never anticipated the emergence of Web-based records,” according to David Brailer, former National Coordinator for Health Information Technology. 

The bottom line is that Obama’s spending plans may impinge on your privacy. There’s a lot at stake with electronically transferring health data and paying claims within the $2.2 trillion healthcare industry.  Concerned Americans should voice their concerns soon to their members of Congress and to Barack Obama.


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HHS Secretary Confirmation Hearing: Questions Remain about How to Pay for Proposed Health-Care Expansions

Health Czar Currently Oversees One-Quarter of Federal Dollars

The January 8 Senate confirmation hearing for former-Senator-turned-lobbyist Tom Daschle was, in the New York Times’ words, “mostly a love-fest as senators from both parties expressed admiration for their former Senate colleague and signaled a willingness to work collaboratively with him on the daunting task of improving the costly, dysfunctional health care system.” 

“Unfortunately,” the Times added, “the hearing did not tell us much at all about how the incoming Obama administration intends to pay for its emerging health care programs…. There were few if any surprises in Mr. Daschle’s broad-brush statements on policy. He wants wider insurance coverage, lower costs, higher quality care, more preventive care, an emphasis on keeping people well, greater use of information technology, more money for community health centers, a stronger Food and Drug Administration and speedier approval of low-cost generic drugs, among other issues.”  However, “He gave no indication of how to pay for all this or how to rein in the escalating costs of entitlement programs, and he was not asked such probing questions by a committee that seems certain to recommend his confirmation.” 

Daschle will have another hearing (before the Senate Finance Committee), “where he is likely to face tougher questions about Medicare, Medicaid and other entitlement programs” notes the Times.

But even before Daschle’s hearing, some had expressed concern about his proposal for a Federal Health Board.  In December 2008 Ronald Bailey wrote in Reason: “Since losing his Senate seat [in] 2004, Daschle has been promoting health care reform proposals. His most comprehensive plan is outlined in his new book Critical: What We Can Do About the Health Crisis. One of Daschle’s more ambitious proposals is the creation of a Federal Health Board (Fed Health) modeled loosely on the Federal Reserve Board….”  Bailey goes on, “Daschle explicitly models his Fed Health on Britain's National Institute for Health and Clinical Excellence (NICE). NICE evaluates treatments for both clinical and cost effectiveness. A treatment may be clinically beneficial, but patients may not get access to it through Britain's National Health Service (NHS) if NICE determines that it's too expensive.” 

It’s worth noting that as HHS secretary Daschle will oversee one out of every four federal dollars spent, according to the November HHS financial report.  Its 2008 budget was $716 billion. (That will increase to $731 billion for 2009.)  HHS also administers more grant dollars than all other federal agencies combined, the report notes. 


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Lead Plaintiff in Medicare Lawsuit Asks for a Temporary Restraining Order and Preliminary Injunction against SSA and HHS

Hall v. Leavitt Challenges Rules Denying Social Security Benefits to Citizens Who Opt Out of Medicare

Washington, DC—Brian Hall, the lead plaintiff in a lawsuit challenging controversial government rules that deny senior citizens their Social Security benefits if they choose to opt out of Medicare, Part A, asked the courts [January 6] to issue a temporary restraining order and preliminary injunction that would prevent the Social Security Administration (SSA) and Department of Health and Human Services (HHS) from enrolling him in Medicare when he becomes eligible this month. The motions were filed in U.S. District Court for the District of Columbia, where Hall v. Leavitt, his original lawsuit, was filed in October. 

"Mr. Hall becomes eligible for Medicare this month, and wants to stop HHS from automatically enrolling him in the entitlement program against his will, which would force him to give up his health savings account and—more important—the right to choose and manage his own medical care," said Kent Masterson Brown, Hall's attorney. 

The new motions ask the court to grant a temporary restraining order and preliminary injunction that will last until Hall v. Leavitt is adjudicated and the court rules on whether the plaintiff has the right to opt out of Medicare and still receive his Social Security benefits. 

The lawsuit, originally filed on October 9, 2008 and amended on Dec. 16, 2008—when former U.S. House Majority Leader Richard Armey and former civilian Navy engineer John Kraus joined as plaintiffs—charges SSA and HHS with adopting unlawful policies that deny otherwise eligible retirees their rightful Social Security benefits if those retirees choose not to enroll in Medicare, a voluntary program [Medicare Part A payroll taxes are mandatory, but enrollment is voluntary].  The lawsuit additionally charges that the policy was adopted and implemented in an illegal manner, violating the federal Administrative Procedure Act. 

Brown said the plaintiff meets the four requirements for the issuance of a temporary restraining order and temporary injunction, which include:  

1)  That the plaintiff possesses a substantial likelihood of success on the merits.  

Brown noted that the plaintiff meets this requirement because the "challenged policies are totally contrary to the Social Security and Medicare Acts and other related regulations," according to the Memorandum of Points and Authorities in Support of the Motions for a Restraining Order and Preliminary Injunction filed in conjunction with the motions. 

2)  That the plaintiff would suffer irreparable harm if the temporary restraining order and preliminary injunction are not granted. 

In the Memorandum, Brown demonstrates that Hall will be denied his fundamental right to privacy and his right to determine his own health care, in violation of the Constitution, if the Court fails to grant the temporary restraining order and preliminary injunction. 

3)  That the injunctive relief would not harm either SSA or HHS. 

Rather than harming SSA or HHS, Brown argues that the government agencies would be better off financially if Hall was not enrolled in the program. 

4)  That the public interest is served by issuing the restraining order and injunction. 

Brown argues that the American public—large numbers of whom are beneficiaries of Social Security and/or Medicare—would be better off if the two programs "not be intertwined by regulation promulgated unlawfully," which undermines their "freedom to receive their hard-earned Social Security benefits without the needless government intervention into their health care choice." 

"All of the factors necessary for a Court to issue a temporary restraining order and preliminary injunction have been met, to be sure," Brown said.  "We look forward to having a hearing on the matter at the earliest possible date."

Note: An initial hearing in the Hall v. Leavitt Medicare lawsuit has been scheduled for January 16, the plaintiffs announced today [January 14, 2009].


  • “Lead Plaintiff in Hall v. Leavitt Asks for a Temporary Restraining Order and Preliminary Injunction Against the Social Security Administration and Department of Health and Human Services,” press release (reprinted in its entirety) distributed January 7, 2009 on behalf of Hall v. Leavitt
  • “Hearing on Lawsuit Challenging Social Security Administration Rule Set for January 16,” press release distributed January 14, 2009 on behalf of Hall v. Leavitt:

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Health Freedom Watch is published by the Insitute for Health Freedom. Editor: Sue Blevins; Assistant Editor: Deborah Grady. Copyright 2009 Institute for Health Freedom.