Health IT bills stall in Congress

Washington -- Health information technology legislation that was once on the fast track is now in peril on Capitol Hill, bogged down by disagreements over several issues that directly affect physicians.

The Health Information Technology Promotion Act of 2006 received House approval in July. Since then, lawmakers have tried to build consensus between the measure and the Wired for Health Care Quality Act, a significantly different version of the legislation that passed the Senate last year.

But negotiators have not made much progress, say congressional staffers and lobbyists familiar with the bills. A compromise measure that Republican leaders hoped would be one of their most significant health reform accomplishments for the year now sits in limbo. Congress recessed for the midterm elections without coming to an agreement on the legislation.

One issue that has proved difficult to reconcile centers on provisions in the House bill that would let hospitals and other entities donate health IT to physicians without running afoul of federal self-referral prohibitions. Senators from both sides of the aisle have expressed concerns about implementing such broad exceptions to the Stark laws. They fear that such a move could lead to fraud and abuse if hospitals make donations purely in a bid to secure patient referrals.

"That has been the major stumbling block in this debate," said Robert Tennant, senior policy adviser for the Medical Group Management Assn., which along with the American Medical Association supports the safe harbors in the House bill. The Senate version does not include Stark law exceptions.

The extent of the impasse may be seen by the fact that House and Senate leaders have not appointed lawmakers to a panel to produce a measure for final consideration in both chambers.

Congress still might be able to enact a consensus bill before the end of the year if it can forge an agreement on this and any other unresolved issues soon after returning to Washington in November for a postelection session. But with physicians, medical group managers and lawmakers also focused on preventing an estimated 5.1% across-the-board Medicare payment cut from taking effect in January, they may not be able to find the time and political will to reverse the current health IT stalemate in the remaining weeks, Tennant said.

Not all of the proposals in the health IT debate are supported by physicians. Another issue holding up progress is whether Congress should mandate an update to the coding system that doctors use to record patient diagnoses for reporting to payers.

Physician groups recently have become more visible in the debate over ICD-10, which proponents of the House bill want doctors using by October 2010. A wide-ranging group of health care organizations have said they need at least two more years before moving to the new code set, which some estimate would increase the number of possible diagnosis codes from about 24,000 to more than 200,000.

The AMA and MGMA recently joined dozens of other physician groups, state medical societies and other organizations in calling on Senate leaders to reject the House deadline or at least push it back to 2012. Mandating such an update in a shorter time period would divert needed resources away from implementing health IT in the physician office setting, they said in a Sept. 19 letter.

"In addition to the costs and challenges associated with implementing new clinical information technology systems, physician offices could face the equally costly prospect of upgrading or replacing practice management systems for billing and coding and the necessity of retraining their billing and coding staff," the groups wrote. "Private payers and others, including the federal government, also would have to upgrade their own payment processing and data management systems to accommodate the significantly larger body of data generated by the transition."

Lawmakers stuck on the IT donation issue may be tempted to remove the safe harbor provisions and press for passage of the rest of the legislation, a move that MGMA's Tennant said would be a big mistake.

"The only thing that this bill would be remembered for is pushing a code set that the industry is not ready for," he said. Tennant added that medical group managers would rather see no legislation at all this year rather than a bill that does not address their concerns about ICD-10.

Some physicians see the delay on Capitol Hill as an opportunity to draw attention to patient privacy concerns that they think are completely ignored in both versions of the bills.

The bills would promote health IT without building in necessary safeguards, such as an individual right to medical privacy and provisions ensuring patient control over who can access electronic medical records, said Deborah Peel, MD, a psychiatrist and chair of the Patient Privacy Rights Foundation, a watchdog group based in Austin, Texas.

Expansion of health technology in the bills would exacerbate inadequacies in current federal privacy law, making this debate the perfect time for lawmakers to consider strengthening patient protections, she said. The inability of lawmakers to forge a consensus measure before leaving town for the elections gives privacy advocates more time to argue their case.

"Without basic privacy protections built into the legislation up front, Congress will create an electronic superhighway system for others to misuse, data mine and steal the nation's medical records," Dr. Peel said.