Health IT bill still faces long odds

Legislation to create a nationwide system of electronic medical records criticized by both healthcare providers and consumer groups.

Legislation intended to create a nationwide system of electronic medical records and protect patient privacy is expected to get a House Energy and Commerce Committee vote this week, but the bill's momentum could be slowed by several factors, including its shared jurisdiction with the Ways and Means Committee and lingering concerns about potential unintended consequences.

Comment on this article in The Forum.Energy and Commerce Health Subcommittee Chairman Frank Pallone, D-N.J., announced at a June markup that his intention was to move the bill, sponsored by Energy and Commerce Chairman John Dingell and ranking member Joe Barton, out of committee, through the House and Senate, and to the White House this year.

The subcommittee approved the bill by voice vote and staffers have been negotiating language with industry and consumer advocates in the weeks since. Several individuals involved in those talks said the measure's prospects for success get slimmer with each passing day.

Consultations revolve chiefly around privacy, Barton and Pallone said.

The bill requires that healthcare providers get patient consent before sharing medical records with other entities for everything from quality review to back-office operations. Under the 1996 Health Insurance Portability and Accountability Act, that information can be used in limited ways without approval.

The change, providers have argued, would be overly burdensome and impede patient care, while consumer groups have complained that "blanket consent" could result in patients unintentionally agreeing to have more information shared than is permitted under existing law.

The bill clarifies the definition of a security breach and raises the bar on breach notification, requiring that patients be alerted about the exposure of any unencrypted health information.

The language calls for an alert "without unreasonable delay" or within 60 days, whichever comes first. The high-tech sector has pressed sponsors to tweak the bill to be more technology-neutral because "encryption is not the only way to make data unreadable," one lobbyist pointed out.

As introduced, the legislation would give HHS the power to approve technologies that are equally or more effective than encryption.

Rep. Henry Waxman, D-Calif., a senior Energy and Commerce member, wants language that would allow state attorneys general to sue on behalf of citizens for breaches because he believes that thousands of complaints about HIPAA violations have been ignored by the Bush administration.

Rep. Mike Rogers, R-Mich., has complained about the bill's consent provision, arguing that it is too broad and would impose regulations on top of those already required by HIPAA.

Rogers introduced an earlier health IT bill with Rep. Anna Eshoo, D-Calif., much of which was folded into the Dingell-Barton legislation. "It's going to be a bloody mark up," one consumer advocate predicted, "but I think they'll have the votes to get it through."

Meanwhile, Ways and Means members' health IT appetite is expected to grow as Energy and Commerce action draws near.

Ways and Means Health Subcommittee ranking member Dave Camp, R-Mich., got the ball rolling in June when he introduced an electronic medical records bill that would allow physicians who purchase health IT systems to deduct a larger portion of the expense more quickly and would eliminate a 2013 sunset that HHS placed on the practice of hospitals providing physicians with software for e-health records.

Ways and Means Health Subcommittee Chairman Fortney (Pete) Stark, D-Calif., has scheduled a hearing on Thursday and might be interested in introducing a bill.

That bill will likely embrace some of the Dingell-Barton language and is expected to include a provision that uses Medicare "as a lever for getting more rapid adoption of health IT," a source said Friday. The source said Stark would like to introduce the bill before the August recess.

A spokesman for Ways and Means Chairman Charles Rangel said his office is "working closely to expedite passage of [health IT] legislation" that ensures access to reliable data while protecting the privacy of sensitive information.

Late last week, Pallone stuck by the timeframe he outlined a month earlier.

"This bill, unlike others, still has the potential of being passed in both houses and getting to the president's desk," he said.

But Dave Roberts, a lobbyist for the Healthcare Information and Management Systems Society, said he believes the House has "achieved what it's going to achieve" this session with respect to health IT. A provision to encourage physicians to adopt electronic prescription that passed last week as part of the Medicare physician payment bill was a good first step, he said.

Related legislation introduced more than a year ago by Senate Health, Education, Labor and Pensions Chairman Edward Kennedy and ranking member Michael Enzi also faces hurdles, even though sponsors want to bring the bill to the floor by unanimous consent.

Sen. Tom Coburn, R-Okla., might object on grounds that the authorization level is excessive. Sen. Olympia Snowe, R-Maine, has voiced concerns about consumer privacy protections.

Senate Judiciary Chairman Patrick Leahy already held up the bill for several months over privacy concerns but reached a deal with HELP Committee leaders in May.