In contrast to the bipartisan, unanimous support for a healthcare information technology bill that passed the U.S. Senate last year, 138 Democrats, nine Republicans and one independent voted against a House counterpart, the Better Health Information System Act of 2006, which was modified in the 11th hour, but passed Thursday, 270-148.
Rep. Michael Ferguson (R-N.J.) praised the bill, H.R.4157, saying, "It will help establish a framework of care for all Americans in the 21st century." The legislation, formerly the Health Information Technology Promotion Act, was renamed Thursday just before the final vote.
Key among its multiple provisions, the House bill would set an Oct. 1, 2010, deadline for the mandatory conversion from the International Classification of Diseases 9th Revision, or ICD-9, codes to ICD-10 codes, a deadline that was extended by one year during negotiations over a final draft of the legislation Wednesday night. It also includes a provision calling for legislative relief from federal anti-kickback and Stark physician-self referral laws for hospitals to assist physician office practices with investment in health IT.
At a House rules committee meeting Wednesday evening, six amendments were selected from two dozen possibilities and presented to the full House for Thursday's vote. All six passed with the support of the Republican majority, five by voice vote. One of them was an amendment by Rep. Tom Price (R-Ga.), a physician, which requires HHS to evaluate and report to Congress the applicability of using ICD and other codes for purposes other than for billing and clinical documentation, such as clinical quality measurement and pay-for-performance schemes.
Another amendment by Reps. Cathy McMorris (R-Wash.) and Adam Smith (D-Wash.) would require HHS to run a two-year pilot project to determine the impact of healthcare IT on disease management programs for Medicaid patients with chronic diseases.
Rep. Kenny Hulshof (R-Mo.) said he was particularly pleased the bill included language directing HHS to support increased use of telemedicine technology, noting that more than 2,000 patients in Missouri, many in rural locations, receive healthcare today through telemedicine services.
The bill would codify and expand the authority of the Office of the National Coordinator for Health Information Technology, which was created at HHS in 2004 through executive order by President Bush. It would grant ONCHIT the responsibility to endorse interoperability guidelines, conduct a national survey on IT exchange capabilities and review federal information systems and security practices.
Among several other last-minute additions and deletions was the removal of a proposal to require reporting of uniform price data for inpatient and outpatient hospital services. The provision, supported by the health insurance industry, was "inserted out of nowhere" last week by Ways and Means Chairman Bill Thomas (R-Calif.) according to a legislative observer who asked not to be identified.
The bill also removed controversial language that would have authorized HHS through administrative rulemaking to pre-empt state privacy laws the HHS secretary deemed as impediments to health information interoperability. The bill retained a provision in that same section requiring HHS to study the variance between state and federal privacy laws and make recommendations on needed changes if the variances are found to create barriers to IT usage.
Even with the offending pre-emption language removed, the lack of affirmative, additional privacy protections in the legislation and its reliance on the privacy rules written pursuant to the 1996 Health Insurance Portability and Accountability Act, were attacked by a parade of Democrats during floor debate Thursday.
While Republicans argued that their bill retains the privacy protections under rules implementing HIPAA, Democrats countered that HIPAA, and thus, H.R.4157, inadequately protect patient privacy.
Rep. John Dingell (D-Mich.) and Charles Rangel (D-N.Y.) sponsored an amendment that didn't make it into the six that were chosen for a vote, which prompted much of the angry rhetoric during more than an hour of floor debate.
The Dingell/Rangel amendment mirrored S.1418, the Wired for Health Care Quality Act, an IT bill that passed the Senate Nov. 18, 2005, by unanimous consent. Their House amendment would have required patient consent before personal health information could be shared electronically. It also would have required all individuals and organizations possessing personal health information to comply with privacy protections. In contrast, HIPAA compliance requirements directly apply only to "covered entities" as defined by the law as providers, claims clearing houses and health plans.
Rep. Lois Capps (D-Calif.), a nurse, said the bill "has no privacy protections for patients."
Rep. Edward Markey (D-Mass.), in a heated speech, said, "Privacy is sacred, and your physician is a privacy keeper and not a data-mining information seeker." By blocking debate on proposed Democratic privacy amendments, Markey alleged that the Republican-controlled rules committee had decided "to side with the insurance industry."
Rep. Lloyd Doggett (D-Texas) called the bill "a pitiful proposal," and taunted Republicans, saying they were "fearful" of a privacy debate.
Earlier this summer, several hundred members of the Health Information and Management Systems Society, a Chicago-based trade group for healthcare IT users and systems developers, lobbied Congress for passage of H.R.4157.
"We support the final version," said Dave Roberts, HIMSS vice president for government relations.
Richard Pollack, executive vice president at the American Hospital Association, said setting a date certain for the conversion to ICD-10 was "probably the most significant" element of the legislation.
"We need the codes to do the job properly, and ICD-9 has become obsolete," Pollack said. "Once the transparency provisions were taken out of the mix, we felt this bill deserved our support."
The Federation of American Hospitals, in a news statement, said the legislation was "a major accomplishment."
Privacy concerns raised
Privacy and consumer groups took a far dimmer view.
"Some provisions of H.R.4157 could eventually take us backward, jeopardizing privacy protections that states have already put in place," said Janlori Goldman, director of the Health Privacy Project, a Washington, D.C.-based not-for-profit organization, in a written statement. "While we are relieved that a dangerous state-law pre-emption provision was removed, we are nonetheless concerned that H.R.4157 puts in place a process -- beginning with a study likely to be skewed against consumers -- that could eliminate critically important state laws and regulations that protect patient privacy. We must build on the protections already in place, not erase them and put consumers at risk."
In a prepared statement, the Austin, Texas-based Patient Privacy Rights Foundation said it also opposed H.R.4157. The group "has been urging Congress to add specific privacy language to upcoming HIT legislation because HIPAA regulations currently do not adequately protect electronic medical records and because current HIPAA enforcement has netted only two violators and resulted in no fines since the new regulations became effective in 2002."
"Maintaining the status quo equals zero patient privacy," said Deborah Peel, a physician and the group's chairwoman.
Little new money
The bill also provides $40 million in grants for IT demonstration projects, focusing on the uninsured, underinsured and medically underserved as well as small physician offices where the penetration rate of EMR technology is lowest of all basic provider groups.
Democrats had other complaints as well.
Rep. Doris Matsui (D-Calif.) said the nation needs a comprehensive IT program, including significantly more money in federal support. The proposed Dingell/Rangel amendment, she said, called for $257 million in federal grant money for IT adoption.
"This technology will not install itself," Matsui said, adding that in a $1.3 billion healthcare system, the $40 million allotment "doesn't even scratch the surface."
Rep. Patrick Kennedy (D-R.I.) said the bill represents a missed opportunity, pointing to a Congressional Budget Office report issued Tuesday that concluded H.R.4157 "would not significantly affect either the rate at which the use of health technology will grow or how well that technology will be designed and implemented."
Kennedy said, "We are talking today about potential, the potential to revolutionize our healthcare system. But frankly, Mr. Speaker, this bill doesn't do it."
Just before the final vote on H.R.4157, a motion to send the bill back to committee was defeated by a far more narrow and partisan vote, 222-198, with 194 Democrats, 3 Republicans and one Independent voting for the motion to recommit and 221 Republicans and one Democrat voting against it.
H.R.4157 will now move to conference committee for reconciliation with S.1418. In addition to its more stringent privacy protections, the Senate version does not include a requirement for ICD-10 conversion.
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