Legislative jam-up

More than 50 bills related to health information technology and personal medical records were introduced during the 109th Congress, but it now looks as if only one piece of legislation — the result of two still-evolving companion bills in the House and Senate — stands any chance of becoming law, according to health IT industry observers.

With the session winding down even as midterm election battles heat up, many advocacy groups are wondering whether lawmakers have the political commitment and goodwill to push any health IT legislation through this year, especially after a partisan divide unexpectedly flared up in early June over the issues of privacy and funding.

“People are getting awful nervous at this point,” said Dave Roberts, vice president of government relations at the Healthcare Information and Management Systems Society (HIMSS).

The legislation with the most potential involves two bills: The Wired for Health Care Quality Act (S. 1418), sponsored by Sens. Hillary Rodham Clinton (D-N.Y.) and Bill Frist (R-Tenn.) and passed by the Senate in November 2005; and the Health IT Promotion Act of 2006 (H.R. 4157), sponsored by Reps. Nancy Johnson (R-Conn.) and Nathan Deal (R-Ga.), which House leaders are still working to get to the floor for a vote.

Both bills would begin the process of setting national standards for medical records storage and interoperability and codify the Office of the National Coordinator for Health IT within the Department of Health and Human Services.

However, the bills also have their differences. H.R. 4157 directs the secretary of HHS to recommend to Congress a single privacy standard that consolidates existing state and federal privacy laws, while S. 1418 defers to the confidentiality requirements laid out in the Health Insurance Portability and Accountability Act (HIPAA).

The Senate also provides some public funding, while the House does not. And Johnson’s bill would create exceptions to conflict-of-interest laws that prohibit health entities from sharing technology with physicians. The Senate bill does not address the issue.

Most health IT advocates believe that compromises would be easy to agree on in a conference committee and that the bill could pass both houses. “If members are really committed to getting this thing done, it is doable,” said Bruce Fried, a partner and co-chairman of the Health Care Group at Sonnenschein Nath & Rosenthal.

Election-year roadblocks
However, that commitment came into question in June, when several political hurdles popped up that could eventually kill any legislation this year, according to Scott Wallace, president of the National Alliance for Health IT.

First, Johnson’s bill was marked up by the House Ways and Means and Energy and Commerce committees. Not surprisingly, the two panels ended up with different versions of the bill. What surprised analysts was that votes came down completely along party lines, even though health IT has so far been largely a nonpartisan issue.

Questions over privacy and funding caused the gap. “Overall, we think it’s more an issue of general political climate raining down on health care IT rather than a fundamental change in attitude toward health care IT,” Wallace said.

Despite the political coloring of the bills, most analysts believed lawmakers could work out their differences in a June conference. But legislators and health IT advocates alike were taken by surprise when the Congressional Budget Office weighed in and projected that the bill would increase federal spending and decrease revenues.

“The CBO really threw sand in the gears,” Fried said. “It’s unclear at this point whether anything will go forward.”

At first it seemed as if Republicans would do whatever it took to push a health IT bill through so they could campaign on an accomplishment to which most constituents can relate. But health IT advocates said that the issue of patient privacy is becoming a larger concern among conservatives, who are now trying to stall the legislation.

“We’ve definitely noticed a real shift in people’s attitudes toward health technology on the Hill,” Roberts said. “People have been hearing a lot of things regarding possible abuses and issues with health records, and they’ve gotten very concerned and taken those concerns to Capitol Hill.”

Privacy advocates pleased
Privacy advocates were more than happy with the development.

“We think that the privacy issue is causing consternation on this whole health IT push, and we think that’s exactly correct,” said Dr. Deborah Peel, executive director of the Patient Privacy Rights Foundation.

“It should cause incredible consternation,” she said, “and we’ve heard from key insiders on the Hill who don’t think the legislation is going anywhere this year because privacy has become so controversial.”

Peel and others think that both the Clinton/Frist and Johnson/Deal bills put patient privacy at risk. Peel said she believes the Johnson bill in particular could ultimately dismantle a set of strong state privacy laws.

“We think it’s a bad bill, and while we think that technology can be a wonderful thing for health care, it has to be the right technology with the right protections,” she said. “We’d rather see Congress pass nothing than to pass a bad bill.”

Despite the challenges, health IT advocates still hold out hope that the issues will be resolved and that Congress will pass a bill. But they worry that the legislation could end up getting stripped of any real substance.

“If all they do is pass a bill that codifies the office of the national coordinator, why bother?” Fried asked.

Already, members of the House Ways and Means Committee have deleted a 2009 deadline for health care providers to convert to ICD-10 billing codes.

That version also appropriates no federal money for providers to adopt new health IT tools.

Extra innings
Wallace continues to hope for a bill that sets up a structure for creating national interoperability standards, codifies the office of the national coordinator, provides some funding to rural safety-net organizations to help them close the IT adoption gap, addresses privacy and includes some type of requirement for ICD-10 conversion.

“It’s hard for me to find words that don’t involve baseball analogies and grand slams to describe the magnitude of that kind of success,” Wallace said. “But I still wouldn’t describe it as a silver bullet. We will not have an interconnected health information system by dint of passage of this bill. There are a number of other major issues that still have to be crossed, not the least of which is the confidentiality debate.”

If the Johnson bill is passed, advocates believe it will move through conference with the Senate bill fairly quickly and go to President Bush. Though he hasn’t spoken publicly about any pending health IT measure, Roberts said, the president is likely to sign the bill given the vision for the use of electronic health records for all Americans by 2014, which he laid out in his State of the Union address earlier this year.

If no legislation is passed this year, health IT is likely to be taken up quickly in 2007 regardless of who controls the House and Senate. Health IT watchers say that the issue has such broad bipartisan support that it will move ahead.

Even though the legislative process would have to start all over, health IT advocates think they’ve made progress in the current Congress. “In terms of getting congressional committee staff educated, getting some members educated and beginning to define what the issues are and what some of the challenges are, I think we’re well under way,” Fried said. “So while we’d be starting from square one, we would be starting from an informed advantage.”