Action Alert- Senate Bill 1693 – Wired for Health Care Quality Act
Dear AAPS Action Team,
Please contact your Senator’s office and ask for the Health LA (legislative assistant). Introduce yourself as a doctor and explain why the federal government should not be involved in dictating how you keep your medical records through “health IT.” Ask the Senator to oppose S. 1693, the Wired for Health Care Quality Act. It destroys patient confidentiality, especially when combined with the HIPAA “Privacy Rule,” which permits or requires disclosure without consent. It also imposes an unfunded mandate on physicians, increases costs, can greatly impede efficiency, and can force physicians to focus on bureaucratic checklists rather than patient needs. It could well be the Quality Reduction Act. There is no “evidence-based medicine” to support its claims.
Find your Senator here- http://www.senate.gov/general/contact_information/senators_cfm.cfm
Additional talking points and bill information are below
Senate Bill 1693 – Wired for Health Care Quality Act –
Title: A bill to enhance the adoption of a nationwide interoperable health information technology system and to improve the quality and reduce the costs of health care in the United States.
Sponsor: Sen Kennedy, Edward M. [MA] (introduced 6/26/2007)
Latest Major Action: 10/1/2007 By Senator Kennedy from Committee on Health, Education, Labor, and Pensions filed written report. Report No. 110-187.
Senate Reports: 110-187
Sen Alexander, Lamar [TN] – 6/26/2007
Sen Burr, Richard [NC] – 6/26/2007
Sen Chambliss, Saxby [GA] – 4/8/2008
Sen Clinton, Hillary Rodham [NY] – 6/26/2007
Sen Collins, Susan M. [ME] – 3/5/2008
Sen Dole, Elizabeth [NC] – 4/17/2008
Sen Enzi, Michael B. [WY] – 6/26/2007
Sen Gregg, Judd [NH] – 6/26/2007
Sen Hatch, Orrin G. [UT] – 6/26/2007
Sen Isakson, Johnny [GA] – 6/26/2007
Sen Klobuchar, Amy [MN] – 8/1/2007
Sen Kohl, Herb [WI] – 11/1/2007
Sen Obama, Barack [IL] – 6/26/2007
Sen Roberts, Pat [KS] – 6/26/2007
Sen Sununu, John E. [NH] – 9/4/2007
AAPS Talking Points-
1. Congress has no constitutional authority to dictate how private medical records should be kept. The only nexus for the exercise of such power is the filing of a claim for federal payment. Thus, any records related to services for which no federal claim is made must be exempt.
2. The bill is really a form of corporate welfare. The cost of acquiring a compliant medical records system is an unfunded mandate on private practitioners, and hence an unlegislated and unconstitutional tax. The benefits primarily accrue to the private partner in the public-private partnership, not to the general welfare.
3. From a practical standpoint, there is no evidence base for the assertion that the proposal will improve quality or reduce costs, and much evidence to suggest the contrary.
4. Congress has no authority to regulate the practice of medicine, and doing “quality monitoring” of practitioners amounts to a form of regulation that effectively dictates how medicine must be practiced to obtain a government-approval rating.
5. Congress should make no law regarding the use of computerized medical records that does not require that all such records systems are EMP-hardened and have adequate backup electrical generating facilities (and stored fuel for same) to keep the system up (including air conditioning) for 60-90 days in the event of disruption of the electrical grid. Has there even been a study of the effect of a prolonged blackout on a hospital that is solely dependent on electronic records?
About the Bill-
Title I: Improving the Interoperability of Health Information Technology – (Sec. 101) Amends the Public Health Service Act to establish the Office of the National Coordinator of Health Information Technology. Requires the Office to: (1) ensure that key health information technology initiatives are coordinated across the Department of Health and Human Services (HHS); (2) enhance the use of health information technology to improve the quality of health care in the prevention and management of chronic disease and to address population health; (3) develop a strategic plan for implementing a nationwide interoperable health information technology infrastructure; and (4) assess the impact of health information technology in communities with health disparities and identify practices to increase the adoption of such technology by health care providers in such communities. Terminates this section on September 30, 2014.
Establishes a public-private Partnership for Health Care Improvement to: (1) provide advice to the Secretary of Health and Human Services (the Secretary) and the nation and recommend specific actions to achieve a nationwide interoperable health information technology infrastructure; (2) make recommendations concerning standards, implementation specifications, and certification criteria for the electronic exchange of health information for adoption by the federal government and, voluntarily, by private entities; and (3) develop a schedule for the assessment of standards and implementation specifications.
Requires the Secretary, the Secretary of Veterans Affairs, and the Secretary of Defense to jointly review such recommendations.
Requires the President to provide for the adoption by the federal government of standards and implementation specifications contained in such recommendation.
Establishes the American Health Information Community to: (1) provide advice to the Secretary and relevant federal agencies concerning health information technology policy considerations; (2) make recommendations concerning a policy framework for the development and adoption of a nationwide interoperable health information technology infrastructure; and (3) make recommendations concerning national policies for adoption by the federal government and, voluntarily, by private entities to support the widespread adoption of health information technology, including the protection of individually identifiable health information.
Requires the Secretary to review all recommendations and determine which should be endorsed by the federal government. Terminates provisions related to the Community on September 20, 2014.
Prohibits a federal agency from expending federal funds for the purchase of new health information technology that is not consistent with standards adopted under this Act. Directs all federal agencies collecting health data in an electronic format to comply with the standards and implementation specifications adopted under this Act.
Requires the Secretary to contract with private entities to serve as Quality Reporting Organizations to store federal health data and develop reports to: (1) improve the quality and efficiency of health care and advanced health care research; (2) enhance the education and awareness of consumers for evaluating health care services; and (3) provide the public with reports on national, regional, provider, and supplier performance.
Requires the Secretary to give researchers access to all federal health care data to report on the performance of health care providers and suppliers.
Title II: Facilitating the Widespread Adoption of Interoperable Health Information Technology – (Sec. 201) Authorizes the Secretary to award competitive matching grants to: (1) eligible entities to facilitate the purchase and enhance the utilization of qualified health information technology systems to improve the quality and efficiency of health care; (2) states for loans to health care providers to facilitate the purchase and enhance the utilization of qualified health information technology; (3) eligible entities to implement regional or local health information plans to improve health care quality and efficiency through the electronic exchange of health information; and (4) eligible entities or consortia to carry out demonstration projects to develop academic curricula integrating qualified health information technology systems in the clinical education of health professionals or to analyze clinical data sets to discover quality measures.
Title III: Improving the Quality of Health Care – (Sec. 301) Requires the Secretary to: (1) provide for the development and use of measures of the quality and efficiency of health care that patients receive; and (2) designate a single organization to promote the development of such quality measures and provide the Secretary with advice and recommendations on the key elements and priorities of a national system for health care performance measurement. Requires the designated organization to: (1) ensure that priority is given to certain measures, including those measures with the greatest potential impact for improving the performance and efficiency of care; (2) establish procedures to ensure that quality measures take into account differences in patient health status, patient characteristics, and geographic locations; and (3) require the owners or developers of quality measures to update and enhance such measures and retire outdated measures.
Allows the Secretary, acting through the Agency for Healthcare Research and Quality (AHRQ), to award grants to organizations to support the development and testing of quality measures that meet the standards established by the designated organizations.
Requires the Secretary to: (1) select quality measures for adoption and use; and (2) implement programs to enable HHS to accept the electronic submission of data for purposes of performance measurement.
Title IV: Privacy and Security – (Sec. 401) Extends health information privacy requirements to an operator of a health information electronic database. Gives individuals the right to inspect and obtain a copy of their protected health information stored in electronic format. Sets forth rights for individuals who are victims of medical fraud or who believe that there is an error in their protected health information.
Title V: Miscellaneous Provisions – (Sec. 501) Directs the Comptroller General to report on the circumstances in which it is necessary and workable to require health plans, health care clearinghouses, and health care providers who transmit health information in electronic form to notify individuals if their individually identifiable health information is wrongly disclosed.
(Sec. 502) Requires the Secretary, acting through the Director of AHRQ, to develop a Health Information Technology Resource Center to provide technical assistance and develop best practices to support and accelerate efforts to adopt, implement, and effectively use interoperable health information technology.
(Sec. 503) Allows the Secretary to make grants to states that have adopted regional reciprocity agreements for practitioner licensure to expedite the provision of telehealth services across state lines.
Critique of Bill (by Jim Pyles)
What are the problems with the “Wired” bill?
The overall concern with the “Wired” bill is that it appears to be designed to eliminate the patient’s right to health information privacy without leaving any fingerprints.
There are no privacy principles set forth by Congress to guide the Secretary’s discretion. Rather, the bill “outsources” the development of health IT standards and specifications, national policies and quality measures to two public/private committees and one “private entity”. Sections 3003(a), 3004(b) and 3010(b). The Secretary is then authorized to adopt such standards and specifications, national policies and quality measures without an opportunity for public comment. Sections 3003(c)(7), 3004(c) and 3011. Apparently these standards, policies and measures can be adopted by the Secretary even if they erode or eliminate the patient’s right to health information privacy.
The committees appear to be stacked to ensure that the consumer’s interest in health information privacy will be inevitably overridden. The “Partnership for Health Care Improvement”, the “American Health Information Community” and the “private entity” charged with developing quality measures are to have one consumer representative (sections 3003(b)(1)(A)(vi)(I), 3004(d)(1)(F)(i)), 3010(c)(2)(C)). However, they are to have members representing providers (likely hospitals), “third party payers”, “information technology vendors”, and “employers”. Sections 3003(b)(1)(A)(IV), (V), (VI) and (VII); 3004(d)(1)(F)(ii), (vi), (vii) and (viii); and 3010(c)(2)(A), (B), (D), and (E). These are all groups that have in the past, and are likely in the future, to oppose recognition and protection of the patient’s right to health information privacy. (The American Hospital Association and the insurers supported elimination of the patient’s right of consent in the Amended HIPAA Privacy Rule, while all consumers and virtually all practitioners opposed eliminating that right from the floor of federal privacy protections.) The Partnership and the Community are to have representation by individuals with expertise in privacy and security but there is no requirement that these individuals have any knowledge or expertise in protecting or preserving privacy and security.
Further, none of these groups are subject to the Hippocratic Oath and standards of professional ethics which recognize the patient’s right to privacy and consent for the disclosure of health information.
Finally, the consumer representative is to be appointed by Comptroller General for the Partnership and the Community by the Secretary for the “private entity”. Of course, they could well appoint a consumer who might, for some reason, be opposed to preserving the patient’s right to health information privacy. Section 3003(b)(1)(A)(vi) and 3004(d)(1)(F).
A final measure that is likely to guarantee that the consumer’s interests do not somehow prevail states that the Partnership, the Community and the “private entity” are to make sure that “no single sector unduly influences the recommendations of the Partnership” (Community or private entity). Sections 3003(b)(3(B); 3004(d)(4); and 3010(c)(4). During an open “stakeholders” meeting on June 15, staff for the HELP Committee was asked if that meant that even consumers could not “unduly influence” the recommendations of the Partnership, Community or “private entity” and what “unduly influence” meant since it is undefined in the bill. The answer was that consumers would not be allowed to unduly influence the recommendations of these committees and that there is a common understanding of what “unduly influence” means. Apparently this means that, under no circumstances, will the consumer’s interest be allowed to prevail in establishing health IT standards, policies and quality measures. By contrast, the third party payer, employer and health IT vendor sectors are permitted to combine and eliminate any consumer right.
Interestingly, the bill does not mention the importance of health information privacy in the quality measures that are to be adopted. Section 3010(d)(1). In fact, improving the quality of health care is not one of the “priorities” in the quality measures to be adopted by the “private entity”. Section 3010(d)(2).
The bill thereby ignores the HHS and NCVHS findings that health information privacy is essential for quality health care. 65 Fed. Reg. at 82,467; NCVHS letter to Secretary Leavitt, p. 3 (June 22, 2006). It further ignores the Supreme Court’s finding that privacy of psychotherapy communications is essential for access to quality psychotherapy. Jaffee v. Redmond, 116 S. Ct. 1923, 1928 (1996). And finally, it ignores the finding of Congress that “the right to privacy is a personal and fundamental right protected by the Constitution of the United States.” Pub. L. 93-579 (a)(4).
In sum, the “Wired” bill fails to appreciate that
“…the entire health care system is built upon the willingness of individuals to share the most intimate details of their lives with their health care providers.”
HHS Finding, 65 Fed. Reg. at 82,467 (Dec. 28, 2000). Without the trust and support of consumers, all of the standards, policies and quality measures called for by the “Wired” bill will be meaningless.
Michael D. Ostrolenk, MA, MFT
Association of American Physicians and Surgeons, Inc.