[Med-privacy] Modernhealthcare. com: Lawmakers still wrestling over IT bill

Sat, 15 Jul 2006 10:44:26 -0400

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modernhealthcare.com 

http://www.modernhealthcare.com/article.cms?articleId=40615

Beyond the Headlines  >>  Written by Matthew DoBias, Joseph Conn and Andis Robeznieks / HITS staff writers 

Story originally published July 14, 2006

Federal lawmakers remained deadlocked on a health information technology bill, for which passage so far has proven much thornier than most policy watchers first thought. 

Rep. Joe Barton (R-Texas) and Rep. Bill Thomas (R-Calif.), who chair the House Energy and Commerce and Ways and Means committees, respectively, are reportedly at an impasse over two main elements of the Health Information Technology Promotion Act: privacy provisions and a scheduled update of the International Classification of Diseases codes. 
The rift between the two chairmen, who share jurisdiction over the bill, HR4157, has some lawmakers concerned that a key opportunity to pass first-of-its-kind health IT legislation could be indefinitely delayed -- or worse, eventually scuttled -- by the intra-party bickering. 

While some Capitol Hill sources downplay the debate, concern over the amount of time the bill is taking to get from the committee level to the House floor for a vote rose to a high pitch in recent weeks, with Majority Leader John Boehner (R-Ohio) meeting with the two chairmen in an effort to smooth passage, according to one source with knowledge of the meeting. 
Kevin Madden, a spokesman for Boehner, would not confirm that a meeting took place, but said that congressional leaders in the House continue to work with the chairmen and committee members "in an effort to produce a good bill with broad support." 
This week, former House Speaker Newt Gingrich drafted a letter to both Barton and Thomas saying that failure to pass the bill "would be a disaster." A copy of the letter also was sent to Boehner, Speaker J. Dennis Hastert (R-Ill.) and Majority Whip Roy Blunt (R-Mo.). 

"The country needs your leadership now," Gingrich wrote in the July 11 letter. "Do not waste this opportunity to improve the lives of millions of Americans and save billions of dollars." 

Room to work
The offer of outside-the-committee aid could help provide a clearing for both chairmen. According to two sources, Barton and Thomas are now talking about not if but when ICD-9 codes get updated to the universally used ICD-10. And the two chairs likely will agree to a study on privacy issues rather than implement regulations at this time. 

The congressional stall triggered talk earlier that President Bush would take the unusual step of issuing a "statement of administration policy," or SAP, as a way to nudge the chairmen into action. The administration often sends to Congress a written SAP, but usually only when a bill has been finalized and readied for a vote. 

To have the administration weigh in while essentially two like-minded bills are still in play, sources said, would have been unorthodox at best. 

In anticipation of a possible Bush policy statement, the Austin, Texas-based Patient Privacy Rights Foundation sent the president a letter quoting three of his speeches in which he said he was in favor of giving individuals control over access to their personal health records. 

The group also asked Bush to use the opportunity to advise Congress to close a loophole in the final privacy rule drafted by HHS in 2002 to implement the Health Insurance Portability and Accountability Act. 

"He clearly understands the right of consent and the right of control, so we think it's time for him to weigh in for the privacy he believes and wants all to have in this system," said Deborah Peel, a Texas psychiatrist and the privacy group's chairwoman. "Frankly, someone hasn't told him it's already gone." 

The HIPAA privacy rule first issued by the Bush administration in 2001 would have required providers to obtain patient consent prior to using or disclosing their protected health information to carry out "treatment, payment, or healthcare operations," but that language was amended out of the rule in 2002, replaced with a provision "that provides regulatory permission for covered entities to use and disclose protected health information for treatment, payment (or) healthcare operations." 
Data-miners exploit the "healthcare operations" loophole for "every damn purpose they can dream up to make money," Peel said. "It's just outrageous and out of control." 

According to Peel, neither of the two contending versions of HR4157 would close that loophole. But the version -- introduced by Rep. Nancy Johnson, (R-Conn.), chairwoman of the healthcare subcommittee of Ways and Means and amended last month by Thomas -- is "more reprehensible," Peel said, because it also provides the means for federal pre-emption of the many state medical privacy laws that are more stringent than HIPAA. State medical privacy laws typically provide heightened controls, including the requirement that a patient give their permission for the disclosure of such highly sensitive information such as HIV/AIDS status, drug- or alcohol-abuse treatment or mental-health treatment. The Johnson/Thomas version outlines a mechanism for federal pre-emption of these more stringent state laws as a way to create a "single set of national (privacy) standards." 

Under their bill, HHS is called upon to study variances between state and federal privacy laws, a process many IT observers believe is already under way via a contract issued by HHS last year to the Research Triangle Institute of Research Triangle Park, N.C. A report on the findings of the study is to be submitted by HHS to Congress, which would have 18 months to legislatively adopt the report's recommendations. But if Congress fails to act, and the HHS secretary deems "a need for greater commonality" between state and federal laws, the bill gives the secretary the power to pre-empt any state privacy laws needed to achieve that end. 

The process parallels how the current HIPAA privacy rule was created, and that's not a good thing, according to Peel. HIPAA also gave Congress time to set national privacy standards legislatively, but when Congress failed to do so, HIPAA gave HHS the power to do it administratively. 

"That's why we're in this mess now," Peel said. "Privacy rights should absolutely never be determined by unelected federal officials and industry appointees. If anyone is going to take away our privacy rights, it ought to be Congress because we can vote them out of office." 

Medical societies weigh in
Lawmakers are hearing conflicting statements from medical societies concerning ICD-10. The American Medical Association is calling for a simpler system with more time for implementation, while the American Hospital Association supports full implementation of ICD-10 by Oct. 1, 2009. America's Health Insurance Plans and the Blue Cross and Blue Shield Association have called for extending implementation to 2012. 

Dan Rode, vice president of policy and government relations for the American Health Information Management Association, argued that continuing to use ICD-9 is like "using a dictionary from 1950." 

Both sides in the ICD debate have studies to back their case. A 2003 report from the Blues Cross and Blue Shield Association calculated the costs of ICD-10 implementation at $14 billion, while a 2004 RAND Corp. study estimated initial costs to be between $425 million and $1.115 billion followed by $5 million to $40 million in lost productivity during the transition for coders and physicians. 

"The healthcare field has lots of different players, and we're not always singing from the same sheet of music, but we still can work and play well together," said AHA lobbyist Patti Goldman. "This is a public health issue. ICD-9 is mired in the middle of the 1970s, and medicine has changed since then." 

The AMA has argued that physicians will be overwhelmed by switching from ICD-9 with its approximately 24,000 codes to the ICD-10 system, which it estimates will have some 207,000 codes. 

"We are concerned with the feasibility of a rapid transition from ICD-9 to ICD-10," said Cecil Wilson, chairman of the AMA board of trustees. "Physicians would face the costly prospect of upgrading or replacing practice-management systems for billing and coding and the necessity of retraining their billing and coding staff. Private payers and others, such as the federal government, would also have to upgrade their own payment processing and data management systems to accommodate the significantly larger body of data generated by the transition. We are optimistic that Congress will fully consider the complexity of the transition and permit physicians and others in the healthcare industry ample time to prepare and execute workable transition plans." 

Goldman, however, called the 207,000 figure an exaggeration and said "adding codes doesn't have to make things harder, it makes them more accurate." 

For example, Jeffrey Linzer Sr., who serves on the American Academy of Pediatricians' Committee on Coding and Nomenclature, said that with ICD-9 pediatricians would just enter an otitis media code for an ear infection, while ICD-10 has specific codes for the right and left ears. Also, ICD-10 detractors mock the specificity for some injury codes, but Linzer, an assistant professor of pediatric and emergency medicine at the Emory University School of Medicine in Atlanta, notes that all ICD-9 allows for is "hit by an object in sports" without identifying the object or the sport. He said this is information payers want as part of their quality management and injury safety programs. 

What do you think? Write us with your comments at hitsdaily@crain.com. Please include your name, title and hometown.

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<div class=MsoNormal><SPAN class=storytopic1><B><I><FONT face="Times New Roman" color=#b80000 size=2><SPAN style="FONT-SIZE: 10.5pt; FONT-STYLE: italic">Beyond the Headlines</SPAN></FONT></I></B></SPAN><I><FONT color=black size=2><SPAN style="FONT-SIZE: 10pt; COLOR: black; FONT-STYLE: italic"> &nbsp;&gt;&gt;&nbsp; </SPAN></FONT></I><I><FONT face=Verdana color=black size=1><SPAN style="FONT-SIZE: 8.5pt; COLOR: black; FONT-STYLE: italic; FONT-FAMILY: Verdana">Written by Matthew DoBias, Joseph Conn and Andis Robeznieks / HITS staff writers</SPAN></FONT></I><FONT color=black size=2><SPAN style="FONT-SIZE: 10pt; COLOR: black"> <o:p></o:p></SPAN></FONT></div>

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<div class=MsoNormal><FONT face=Verdana color=black size=2><SPAN style="FONT-SIZE: 10pt; COLOR: black; FONT-FAMILY: Verdana">Story originally published July 14, 2006<o:p></o:p></SPAN></FONT></div>

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<div class=MsoNormal><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt; COLOR: black; FONT-FAMILY: Arial">Federal lawmakers remained deadlocked on a health information technology bill, for which passage so far has proven much thornier than most policy watchers first thought. </SPAN></FONT></div>

<div class=MsoNormal><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt; COLOR: black; FONT-FAMILY: Arial"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">Rep. Joe Barton (R-Texas) and Rep. Bill Thomas (R-Calif.), who chair the House Energy and Commerce and Ways and Means committees, respectively, are reportedly at an impasse over two main elements of the Health Information Technology Promotion Act: privacy provisions and a scheduled update of the International Classification of Diseases codes. <o:p></o:p></SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">The rift between the two chairmen, who share jurisdiction over the bill, HR4157, has some lawmakers concerned that a key opportunity to pass first-of-its-kind health IT legislation could be indefinitely delayed -- or worse, eventually scuttled -- by the intra-party bickering. </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">While some Capitol Hill sources downplay the debate, concern over the amount of time the bill is taking to get from the committee level to the House floor for a vote rose to a high pitch in recent weeks, with Majority Leader John Boehner (R-Ohio) meeting with the two chairmen in an effort to smooth passage, according to one source with knowledge of the meeting. <o:p></o:p></SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">Kevin Madden, a spokesman for Boehner, would not confirm that a meeting took place, but said that congressional leaders in the House continue to work with the chairmen and committee members "in an effort to produce a good bill with broad support." <o:p></o:p></SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">This week, former House Speaker Newt Gingrich drafted a letter to both Barton and Thomas saying that failure to pass the bill "would be a disaster." A copy of the letter also was sent to Boehner, Speaker J. Dennis Hastert (R-Ill.) and Majority Whip Roy Blunt (R-Mo.). </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">"The country needs your leadership now," Gingrich wrote in the July 11 letter. "Do not waste this opportunity to improve the lives of millions of Americans and save billions of dollars." </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><B><FONT face=Arial color=black size=2><SPAN style="FONT-WEIGHT: bold; FONT-SIZE: 10pt">Room to work</SPAN></FONT></B><br>
The offer of outside-the-committee aid could help provide a clearing for both chairmen. According to two sources, Barton and Thomas are now talking about not if but when ICD-9 codes get updated to the universally used ICD-10. And the two chairs likely will agree to a study on privacy issues rather than implement regulations at this time. </div>

<div><o:p></o:p>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">The congressional stall triggered talk earlier that President Bush would take the unusual step of issuing a "statement of administration policy," or SAP, as a way to nudge the chairmen into action. The administration often sends to Congress a written SAP, but usually only when a bill has been finalized and readied for a vote. </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">To have the administration weigh in while essentially two like-minded bills are still in play, sources said, would have been unorthodox at best. </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">In anticipation of a possible Bush policy statement, the Austin, Texas-based Patient Privacy Rights Foundation sent the president a letter quoting three of his speeches in which he said he was in favor of giving individuals control over access to their personal health records. </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">The group also asked Bush to use the opportunity to advise Congress to close a loophole in the final privacy rule drafted by HHS in 2002 to implement the Health Insurance Portability and Accountability Act. </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">"He clearly understands the right of consent and the right of control, so we think it's time for him to weigh in for the privacy he believes and wants all to have in this system," said Deborah Peel, a Texas psychiatrist and the privacy group's chairwoman. "Frankly, someone hasn't told him it's already gone." </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">The HIPAA privacy rule first issued by the Bush administration in 2001 would have required providers to obtain patient consent prior to using or disclosing their protected health information to carry out "treatment, payment, or healthcare operations," but that language was amended out of the rule in 2002, replaced with a provision "that provides regulatory permission for covered entities to use and disclose protected health information for treatment, payment (or) healthcare operations." <o:p></o:p></SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">Data-miners exploit the "healthcare operations" loophole for "every damn purpose they can dream up to make money," Peel said. "It's just outrageous and out of control." </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">According to Peel, neither of the two contending versions of HR4157 would close that loophole. But the version -- introduced by Rep. Nancy Johnson, (R-Conn.), chairwoman of the healthcare subcommittee of Ways and Means and amended last month by Thomas -- is "more reprehensible," Peel said, because it also provides the means for federal pre-emption of the many state medical privacy laws that are more stringent than HIPAA. State medical privacy laws typically provide heightened controls, including the requirement that a patient give their permission for the disclosure of such highly sensitive information such as HIV/AIDS status, drug- or alcohol-abuse treatment or mental-health treatment. The Johnson/Thomas version outlines a mechanism for federal pre-emption of these more stringent state laws as a way to create a "single set of national (privacy) standards." </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">Under their bill, HHS is called upon to study variances between state and federal privacy laws, a process many IT observers believe is already under way via a contract issued by HHS last year to the Research Triangle Institute of Research Triangle Park, N.C. A report on the findings of the study is to be submitted by HHS to Congress, which would have 18 months to legislatively adopt the report's recommendations. But if Congress fails to act, and the HHS secretary deems "a need for greater commonality" between state and federal laws, the bill gives the secretary the power to pre-empt any state privacy laws needed to achieve that end. </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">The process parallels how the current HIPAA privacy rule was created, and that's not a good thing, according to Peel. HIPAA also gave Congress time to set national privacy standards legislatively, but when Congress failed to do so, HIPAA gave HHS the power to do it administratively. </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">"That's why we're in this mess now," Peel said. "Privacy rights should absolutely never be determined by unelected federal officials and industry appointees. If anyone is going to take away our privacy rights, it ought to be Congress because we can vote them out of office." </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><B><FONT face=Arial color=black size=2><SPAN style="FONT-WEIGHT: bold; FONT-SIZE: 10pt">Medical societies weigh in</SPAN></FONT></B><br>
Lawmakers are hearing conflicting statements from medical societies concerning ICD-10. The American Medical Association is calling for a simpler system with more time for implementation, while the American Hospital Association supports full implementation of ICD-10 by Oct. 1, 2009. <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" /><st1:place w:st="on"><st1:country-region w:st="on">America</st1:country-region></st1:place>'s Health Insurance Plans and the Blue Cross and Blue Shield Association have called for extending implementation to 2012. </div>

<div><o:p></o:p>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">Dan Rode, vice president of policy and government relations for the American Health Information Management Association, argued that continuing to use ICD-9 is like "using a dictionary from 1950." </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">Both sides in the ICD debate have studies to back their case. A 2003 report from the Blues Cross and Blue Shield Association calculated the costs of ICD-10 implementation at $14 billion, while a 2004 RAND Corp. study estimated initial costs to be between $425 million and $1.115 billion followed by $5 million to $40 million in lost productivity during the transition for coders and physicians. </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">"The healthcare field has lots of different players, and we're not always singing from the same sheet of music, but we still can work and play well together," said AHA lobbyist Patti Goldman. "This is a public health issue. ICD-9 is mired in the middle of the 1970s, and medicine has changed since then." </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">The AMA has argued that physicians will be overwhelmed by switching from ICD-9 with its approximately 24,000 codes to the ICD-10 system, which it estimates will have some 207,000 codes. </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">"We are concerned with the feasibility of a rapid transition from ICD-9 to ICD-10," said Cecil Wilson, chairman of the AMA board of trustees. "Physicians would face the costly prospect of upgrading or replacing practice-management systems for billing and coding and the necessity of retraining their billing and coding staff. Private payers and others, such as the federal government, would also have to upgrade their own payment processing and data management systems to accommodate the significantly larger body of data generated by the transition. We are optimistic that Congress will fully consider the complexity of the transition and permit physicians and others in the healthcare industry ample time to prepare and execute workable transition plans." </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">Goldman, however, called the 207,000 figure an exaggeration and said "adding codes doesn't have to make things harder, it makes them more accurate." </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt">For example, Jeffrey Linzer Sr., who serves on the <st1:place w:st="on"><st1:PlaceName w:st="on">American</st1:PlaceName> <st1:PlaceType w:st="on">Academy</st1:PlaceType></st1:place> of Pediatricians' Committee on Coding and Nomenclature, said that with ICD-9 pediatricians would just enter an otitis media code for an ear infection, while ICD-10 has specific codes for the right and left ears. Also, ICD-10 detractors mock the specificity for some injury codes, but Linzer, an assistant professor of pediatric and emergency medicine at the Emory University School of Medicine in Atlanta, notes that all ICD-9 allows for is "hit by an object in sports" without identifying the object or the sport. He said this is information payers want as part of their quality management and injury safety programs. </SPAN></FONT></div>

<div><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt"><o:p></o:p></SPAN></FONT>&nbsp;</div>

<div><I><FONT face=Arial color=black size=2><SPAN style="FONT-SIZE: 10pt; FONT-STYLE: italic">What do you think? Write us with your comments at <A title=mailto:hitsdaily@crain.com href="mailto:hitsdaily@crain.com">hitsdaily@crain.com</A>. Please include your name, title and hometown.</SPAN></FONT></I><o:p></o:p></div>

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