Medical Device Daily Washington Editor

All the efforts over the past few years to get healthcare information technology (HIT) moving into the medical marketplace in meaningful numbers have run into a number of hurdles, but the most prominent disagreement on Capitol Hill may be the question of data privacy. Wednesday's hearing on HIT legislation in the House Energy & Commerce Committee's health subcommittee did nothing to dispel that perception.

However, it was not only members of the GOP who expressed concerns that privacy considerations might thwart much-needed action on HIT.

Subcommittee Chairman Frank Pallone (D-New Jersey) opened the hearing by noting that "we spend approximately 2.6 trillion," roughly 16% of GDP, on healthcare. "In spite of all our spending, we don't fare better on a number of health measures than nations that spend a lot less," he said.

"HIT could improve our system by making it safer and less costly," Pallone said "and yet most patients and providers rely on antiquated systems," such as paper files. "All these problems could be solved, I believe, with HIT," describing the annual savings at as much as $170 billion, which could go toward expanding access to insurance.

The hearing was on a discussion draft for legislation that would "provide a roadmap for how to best integrate the federal government's role in the promotion of HIT," according to the May 22 memo. The draft, which has not yet received a house resolution number, would codify the role of the Office of the National Coordinator for Healthcare Information Technology and provide a number of financial resources to bring providers up to digital speed. Pallone also said, however, that the bill "would close a number of loopholes in the current regulatory framework" in privacy law.

He then said: "I recognize there are various views" on the privacy issue, but said "it is a draft and we continue to seek input" for on the questions of funding, privacy and interoperability."

The ranking GOP member, Rep. Nathan Deal (R-Georgia) said "the expansion of HIT is one of the most fundamental reforms we should make" in healthcare, and "it is my hope that the legislation will strike an important balance" so as not to impede changes underway. "We are already seeing providers and payers moving forward," he said, but Congress can accelerate the progress "with targeted legislative action." Remaining issues include "mak[ing] changes to existing medical privacy laws" in a way that "balance these protections as we maintain a workable framework."

Deal remarked also that the draft does not address relief from Stark and anti-kickback law, which was "a major component in our work on HIT in the last Congress."

The first panelist to speak was Stephen Stack, MD, chairman of the HIT advisory group for the American Medical Association (Chicago). Stack said "when properly implemented ... HIT has the potential to transform medical care," and "a robust HIT system would be an invaluable tool in emergency care."

"Many physicians are already considering incorporating HIT into their practices," Stack said, and the advisory committees described in the discussion draft are important in developing HIT.

"This vigilance should not become a barrier to HIT," he said in reference to privacy standards, but he added that "[a] full two thirds of physicians say they will be forced to delay" purchases such as HIT because of the prospect of cuts to Medicare Part B reimbursements. "It is essential that financial incentives be available and easily accessible," especially for small physician practices.

After the first panel had delivered its briefs, the ranking member of the full Energy and Commerce Committee, Rep. Joe Barton (R-Texas) asked Byron Thames, MD, of AARP (Washington) if the association objected to putting a definition of privacy in the bill. Thames said yes, but "we don't want to have to choose between privacy and HIT. We want both," Thames said, but reliance solely on patients to provide consent "puts an unfair burden on consumers." He said "we're going to have to have some relations to make this work" and he is leery of holding the bill up on this issue.

On the other hand, Deborah Peel, MD, founder of Patient Privacy Rights (Austin, Texas), described consent as "very feasible because we now have technology" that can make consent "cheap, easy and fast.

"There is no reason to make a choice," Peel said, because a system can offer privacy and rapid consent.

Deven McGraw, director of the Health Policy Project at the Center for Democracy and Technology (Washington), said "we disagree with ... pinning the privacy and security on patient consent because we think patient consent" weakens privacy. She said the organization "would focus on whether institutional protections are there because we think that's what protects privacy" rather than putting the burden of consent on each and every patient.

Rep. Michael Burgess (R-Texas), a former physician, expressed serious doubts on the privacy issue. "I wonder if we're making a mistake by putting ourselves in between" the patient and provider, adding that "I've been here five years and I don't see that we've made any progress on [HIT] on the federal level."

Burgess also criticized the Rand (Santa Monica, California) study on the potential savings for HIT

He said the Rand study "ignores the investment" required by small doctors to go electronic. He stated further that "the critical thing is that ... those [financial] incentives have to be substantial" to get a lot of doctor's offices on board and that the addition of HIT would "add minutes to each patient encounter" and might trim the number of patients a doctor can see. He asked AMA's Stack to provide data on "how substantial those incentives must be."

Stack said "I was intentionally silent on ... the potential cost savings" because of the wide range of estimates. He said privacy issues should be addressed by "holding people accountable" for data breaches. "I don't think we know the true power of" HIT for cost savings and improvement of care, he said, but urged Congress to "try not to delve too deeply into the private sector" in a way that will be prescriptive and burdensome.

Rep. Charles Gonzalez (D-Texas) pointed out that Google's personal health record system shows that people have "some sense of security and confidence in that security," even when held by a large corporate entity. He asked Peel "why would so many people be willing to subscribe to this service ... if they had such concerns that" the data "may be shared by millions and millions of curious people?"

Peel said users of Google do so "because they strongly promise privacy," and "it's the promise of control that will help drive acceptance."

Rep. Edward Markey (D-Massachusetts responded by citing a "privacy crisis." He said "the problem is these insurance companies, all the big HMOs" and that "they want to make money off our privacy."

"I'll give my right arm to get privacy into the HIT bill," Markey said.

Are providers dragging their feet in hopes of funding and over the possibility that their data won't mesh?

Rogers said that "huge numbers of lives that have been saved" thanks to HIT, but said that one group thinks the "greatest use of your healthcare record is to hurt you, not help you."

Peel said she believes that "we don't know how many prescription data mining companies there are" and "I think that if we lay another privacy layer over HIPAA," the hoped-for benefits will never arise. "I don't want to have our arguments over privacy and security" keep doctors from saving lives.