Congress sends health IT back to drawing board

Washington -- Capitol Hill's leading health information technology legislation for 2006 died a slow death, but lawmakers are hoping for a reincarnation of sorts in 2007.

Congress was unable to come to an agreement on the health IT issue before adjourning in December, despite spending about five months trying to bridge the gap between two significantly different Senate and House bills. The Wired for Health Care Quality Act passed the Senate in November 2005, and the Health Information Technology Promotion Act of 2006 passed the House last July.

In the end, disagreements were too pronounced between House and Senate leaders over setting safe harbors for health IT donations to doctors, providing grants to technology adopters, and updating diagnostic code sets used by hospitals and physicians. This year, lawmakers will go back to the drawing board and craft new legislation rather than reintroduce the same bills that ground to a halt in negotiations between the houses, congressional aides and lobbyists said.

The new Democratic majority in both chambers will play a large part in determining how information technology priorities will be handled. In the House, Democrats who were largely kept out of the loop when the legislation was developed last year will have more of a say in how the issue resurfaces now that they control the agenda, Bridgett Taylor, chief Democratic aide on the House Ways and Means Committee, said at a recent Alliance for Health Reform briefing.

"That's an area where we're going to have to have some hearings, there's no doubt about it, because there was not a lot of open process last year on the health information technology legislation," she said.

On the Senate side, health IT may move a little bit quicker because the process of crafting and approving the bill in 2005 involved Democrats from the start. The issue is "ripe for bipartisan action," said Mark Hayes, Republican health policy director for the Senate Finance Committee.

House Democrats are not in the same camp as Republicans on several main provisions in last year's bill, and any legislation that emerges from the hearings likely will be significantly different than the GOP version.

Provisions that would exempt physicians and hospitals from self-referral prohibitions when doctors receive donations of information technology, for instance, are not likely to appear in a Democratic health IT bill. Rep. Pete Stark (D, Calif.), who is set to take over the House Ways and Means health subcommittee, wrote the original laws that govern self-referral and is expected to resist any attempt to loosen the restrictions, said Robert Tennant, senior policy adviser for the Medical Group Management Assn.

The American Medical Association is one of several groups, including MGMA, that supports Stark law exemptions that would make it easier for health systems and hospitals to give electronic medical record systems and other technology products to doctors who otherwise would not be able to afford them. But Stark and other Democrats are worried that those safe harbors would encourage hospitals to make donations strictly in an effort to get more patient referrals.

Instead, House Democrats are looking to follow in the footsteps of the Senate, which eschewed self-referral exceptions in favor of providing federal grant money to help doctors buy health IT, Taylor said. The AMA also supports a funding stream.

Coding, privacy concerns

Doctors have more items on their wish list when it comes to rebooting the health information technology debate.

The 2006 House bill had a provision that would have required hospitals and physicians within four years to start using ICD-10, an upgraded version of the ICD-9 diagnostic code set that health professionals use on claims today. The AMA, MGMA and others called for a minimum two-year extension of that deadline. Both doctors and payers would need more time to get up to speed on ICD-10, which has many more diagnosis codes than the current system, the groups said.

Lawmakers are not likely to revisit the debate over the coding update in 2007, aides and lobbyists said. For one thing, Rep. Nancy Johnson (R, Conn.), the chair of the House Ways and Means health subcommittee and one of the biggest ICD-10 proponents, lost her re-election bid and will not return to Congress. In addition, Democrats have not been as involved in this particular debate as Republicans.

Congress also might defer to the Bush administration on this issue, MGMA's Tennant said. The Centers for Medicare & Medicaid Services has indicated that it is working on a proposed rule that would address the health care industry's upgrade to the new code set. Although CMS can require physicians and others to honor any deadline it proposes, stakeholders hope the administration will take a more measured approach by soliciting significant input on what would constitute a workable solution, he said.

Patient and physician privacy concerns also figure prominently for doctors in the IT debate. "As more physicians use health IT, concerns about who has access to and use of the information grows," said AMA board Trustee J. James Rohack, MD.

Some doctors see congressional legislation aimed at expanding technology use as the perfect opportunity to pass the added privacy protections that they say should go along with it. Deborah Peel, MD, a psychiatrist and chair of the Texas-based Patient Privacy Rights Foundation, opposed both the House and Senate bills because neither ensured patient control over who would be able to access personal medical information once more entities started adopting health IT.

"No bill in this case is much better than a bad bill," she said. Her group and others will use the debate in 2007 to continue arguing for the adoption of more robust privacy standards.