Lawmaker Challenges ONC Authority for HIE Governance

Congressman Morgan Griffith (R-Va.), a member of the House Energy and Commerce Subcommittee on Health, has called into question the Office of the National Coordinator for Health IT’s authority over health information exchange governance.

The HITECH Act established ONC in law and provided the Department of Health and Human Services with the authority to establish programs to improve health care quality, safety, and efficiency through the promotion of health IT, including electronic health records and private and secure electronic health information exchange.

However, at a Feb. 26 subcommittee hearing on the Health and Human Services fiscal 2016 budget proposal, Griffith took the opportunity to call out HHS Secretary Sylvia Burwell on ONC’s authority and its request for $92 million to fund accelerated improvements in health IT interoperability, including strategic investments to support development and testing of interoperability standards and the agency’s new draft Interoperability Roadmap.   

“The President’s fiscal year 2016 budget calls for $92 million for [ONC] for purposes including the transition to a governance approach for health information exchange,” Griffith told Burwell. “In 2012, an HHS request for information noted that congressional authority is granted to the ONC in the 2009 HITECH Act that would support this governance mechanism. Madam Secretary, I hold in my hand a copy of a Congressional Research Service report dated January 7, 2015, that suggests ONC does not have the authority to support the ONC governance structure outlined in the President’s budget.”

Burwell replied that she was not familiar with the Congressional Research Service report, which the congressman entered into the record. Griffith’s office provided Health Data Management with a copy of the CRS report, entitled “Scope of the Legal Authority for the Office of the National Coordinator for Health Information Technology.”

The report, which was requested by the House Energy and Commerce Committee, analyzes the scope of ONC’s current legal authority. According to the report, ONC’s statutory role is largely centered on proposing “standards, implementation specifications, and certification criteria” that form the basis for several incentive programs established to “encourage, rather than require, entities to adopt certified HIT.” The report goes on to say that the HITECH Act “specifically limits the authority provided under the Act, in that the statute cannot be construed to ‘require a private entity to adopt or comply with a standard’ proposed by ONC and promulgated by HHS.”

When pressed by Griffith whether there should be congressional authorization for ONC to take such actions, Burwell agreed that there should be. The HHS secretary noted that ONC recently released a draft Interoperability Roadmap that “cuts across many of the issues” preventing health IT interoperability on a national level.  

In response to a query from Health Data Management, an ONC spokesperson provided the following statement: “We identified our path forward for governance in the draft Nationwide Interoperability Roadmap issued last month. The approach in the Roadmap is in line with our FY 2016 Budget which describes how we will identify the rules of the road needed for information to flow. We believe the HITECH Act Section 3001 (c)(8) specifically provides ONC with the appropriate authority to establish a governance mechanism for that nationwide health information network.”

Griffith concluded his remarks saying: “I am concerned when the experts are telling me—both legal and otherwise—that this agency is going beyond its scope of authority and that this is a problem in this Administration.”