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Johnson, Deal Offer Medical IT Bill

OCTOBER 27, 2005 -- A new bill introduced Thursday by two House subcommittee chairmen would allow the Department of Health and Human Services (HHS) to set national medical privacy standards that would trump state laws. The bill would also ease restrictions on hospitals' donations of information technology equipment to doctors.

The legislation (HR 4157), sponsored by Republican Reps. Nancy L. Johnson of Connecticut and Nathan Deal of Georgia, is heavy on regulatory spadework to dig a channel for the flow of money into federal development of health care information technology. But the bill comes up dry on the dollars themselves, according to a summary of the legislation.

Johnson is chairwoman of the Ways and Means Health Subcommittee. Deal is chairman of the Energy and Commerce Health Subcommittee.

House GOP aides said it would be ill advised to fold a big federal grant program into the bill. "We've got some structural pieces we've got to put into place," said one Republican aide. Those changes could open the way for major private sector investment without the need for federal dollars, another GOP aide said.

The bill supports many of the key Bush administration efforts to advance health care IT, including the key role played by the Office of the Information Technology Coordinator at HHS. But it goes further than the administration's proposed regulation in easing restrictions on information technology donations to doctors. And it moves toward uniform federal privacy standards, unlike current administration initiatives.

Known as the Health Information Technology Promotion Act of 2005, the bill is much the same as a version floated by Johnson's staff this summer. The bill adds some donor restrictions that weren't in the earlier proposal.

With the possibility that the House may wrap up its work for the year before Thanksgiving, prospects for passage of the bill this year appear tentative. The chances of its success may improve up if Congress comes back in December.

A Pat on the Back for Brailer
The bill would codify the office of the National Coordinator for Health Information Technology at Health and Human Services, a position now occupied by David Brailer. The legislation gives the office authority to coordinate federal efforts to develop and maintain standards used to exchange medical data. The measure does not create deadlines, however, for standards to ensure "interoperability," or the capacity of information hardware and software to work efficiently together to allow the speedy transmission of electronic health records, prescriptions, test results, MRI scans, and other diagnostic imaging.

The office would also be given responsibility for overseeing efforts to certify and inspect health care IT products to ensure their compliance with interoperability and other standards. The office would have to maintain and update "a strategic plan to guide the nationwide implementation of interoperable health information technology to improve health care quality, reduce medical errors, increase efficiency of care, and advance the delivery of appropriate evidence-based health care services," according to a summary of the bill.

"This legislation will make sure the national health IT coordinator's post is a permanent one, and it will overcome some of the key obstacles that have slowed our progress toward adoption of a national, interoperable electronic system," Johnson said Thursday in a written statement.

Privacy Standards and Prospects
The bill would require HHS to study state privacy laws and data transaction standards, and the way in which those laws affect the flow of medical data. Health industry executives say a "patchwork" of varying state laws on medical privacy will prevent the creation of an efficient national health information system. HHS would have 18 months to report back to Congress on "whether state and federal privacy laws should be conformed to a single set of federal standards."

If HHS concluded such standards were needed, and Congress failed to enact them within three years of passage of the Johnson-Deal bill, their measure would give the HHS secretary the power to create a uniform standard for privacy and security of patients' health information, the summary says.

The bill also includes requirements for adopting data transaction standards and billing codes. It mandates that HHS develop a plan to coordinate efforts to develop those standards.

Eased Limits on IT Donations
The bill would carve out new "safe harbors" in existing laws that allow "hospitals, group practices and other entities to provide physicians with hardware, software or information technology training and support services that are used primarily for the electronic exchange of clinical health information," the summary says.

The bill would place some constraints on donations. These constraints were not included in the proposal floated by Johnson's staff in July.

Specifically, a hospital or other donor couldn't require the doctor to limit use of technology to the donor's patients, nor could donors keep the doctor from linking the technology to other IT systems.

Also, hospitals' donations of software to doctors couldn't be related to the volume or dollar value of patient referrals that a doctor would send back to the hospital.

The bill would pre-empt state laws to ensure that the federal exceptions to the so-called "Stark" and anti-kickback laws can be implemented. It would also require that any donated technology comply with HHS technology standards or certification procedures.

The bill would require that the HHS Secretary report to Congress in three years on the effect of these safe harbors on the adoption of information technology and "any impact it has had on business relationships between providers." The secretary would then be able to issue new regulations establishing new criteria for the safe harbor.

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