Friday, June 09, 2006

HR 4157: Electronic Health Records Debate

[Cartoon by Steve Greenberg, posted with artist's permission.]

Nick Meyers, the APA Director of Government Relations, sent the following memo out yesterday, alerting psychiatric physician members about pending national legislation on electronic medical records and their impact on privacy and confidentiality of personal health information. I'll try to post more on this later, but in meantime, contact your Senators and Delegates to let them know that privacy is important to you, and that you want to be notified if there is a breach in the confidentiality of your records (see latest VA fiasco here or here or here).

This afternoon, the House Energy and Commerce Health Subcommittee approved its version of legislation to facilitate the development of a national health information technology infrastructure (H.R. 4157). The Subcommittee action follows approval of a different version of the bill by the House Ways and Means Health Subcommittee, whose Chairman, Nancy Johnson (R-CT), is the lead sponsor of the bill.

As approved by the two Subcommittees, both bills codify the Office of the National Coordinator for Health Information Technology (ONCHIT), lay out broad policy goals for the establishment of a nationwide interoperable health information technology infrastructure, and include important “safe harbors” to the Stark II anti-kickback law as the HIT system is developed. The goals of the national HIT system include the promoting of health care quality, reducing medical errors, improving efficiency, facilitating portability of patient information by patients, and promoting health care research. The Ways and Means bill includes as a goal that the national HIT system “ensures that the confidentiality of individually identifiable health information is secure and protected.” The Energy and Commerce bill requires that the system is “consistent with legally applicable requirements with respect to securing and protecting the confidentiality” of patient records.

The Ways and Means bill as introduced included a study of privacy that opened the door to possible weakening of current privacy protections, and would have allowed the Secretary of HHS broad latitude in acting by regulation to “harmonize” privacy laws in a way that could have undercut existing HIPAA rules protecting state privacy laws that were stronger than HIPAA’s basic requirements. APA, both individually and in conjunction with the American Medical Association and mental health groups including the American Psychological Association and the American Psychoanalytic Association, has always sought to include the strongest possible privacy protections as one of the essential elements of any national HIT system. We met personally with Chairman Johnson and her key health staff to outline our concerns and to offer constructive suggestions about how the bill’s privacy language could be improved. With her support, our efforts resulted in an extensive reworking of the bill as approved by the Subcommittee. While not perfect, the changes are a very substantial improvement, and Chairman Johnson certainly deserves thanks for her efforts. A more detailed analysis of the changes is forthcoming.

The bill approved by the Energy and Commerce Health Subcommittee explicitly protects the current HIPAA “non-preemption” language that ensures that stronger state privacy laws will remain in force. While this is an important acknowledgment, additional work is needed to protect patient medical records, as evidenced by recent revelations of data and record loss in the VA system and DOD, among others. During Subcommittee debate, Democrats proposed an amendment that sought to strengthen the enforcement of existing privacy protections and require a privacy breach notification. The amendment failed by a vote of 10 to 12.

What’s next? Next Tuesday, the full Energy and Commerce Committee will consider its amendment to H.R. 4157. We also expect the full Ways and Means Committee to consider the bill as soon as next week. If the two bills continue to have major differences, they will have to be reconciled presumably in the House Rules Committee. Since the House GOP leadership has designated the week of June 18 as “Health Week” it seems very likely that HR 4157 – however amended – will be a centerpiece of the week’s activities.