Legislation introduced in the U.S. House and initially sponsored by nearly three-quarters of the Republican caucus clearly appears to seek repeal of the Medicare/Medicaid electronic health record meaningful use incentive payment programs. But whether the bill also would repeal all of the HITECH Act within the economic stimulus law is unclear.

The bill also would prohibit appropriations of funds to carry out any programs under the health care reform law, and a related law designated to "fix" components of the reform law.

The bill is H.R. 408, the Spending Reduction Act of 2011, and sponsored by Rep. Jim Jordan (R-Ohio) along with, at this juncture, 174 other GOP members. The House has 242 Republicans, far above the 218 votes needed for passage in the chamber. The bill seeks to cut $2.5 trillion in federal spending during the next decade. It includes an extensive list of existing government programs that would be repealed, along with other provisions to cut spending, including extending the federal employee pay freeze and limiting the number of civilian employees in the Executive Branch.

The point of interest to the health I.T. industry is Section 302 of H.R. 408, which would repeal a number of stimulus law provisions: "Effective on the date of the enactment of this Act, subtitles B and C of Title II and Titles III through VII of Division B of the American Recovery and Reinvestment Act of 2009 (Public Law 111-5) are repealed, and the provisions of law amended or repealed by such provisions of Division B are restored or revived as if such provisions of Division B had not been enacted."

The Medicare/Medicaid meaningful use incentive programs are Title IV of Division B, so the more than $27 billion authorized under the stimulus law for incentive payments would seemingly be repealed if the GOP bill were enacted.

But the bill's language--and an interpretation of the language from Rep. Jordan's office--make the effect on HITECH Act provisions murky.

For starters, the HITECH Act itself is in a different section than the meaningful use incentive programs. HITECH is Title XIII under Division A of the stimulus law, so Section 302 of the GOP bill does not affect the act outside of incentive funding.

There is another section, however, that does pertain to HITECH. Section 301 reads: "Effective on the date of the enactment of this Act, there are rescinded all un-obligated balances of the discretionary appropriations made available by Division A of the American Recover and Reinvestment Act of 2009 (Public Law 111-5)."

That suggests that any unspent funds from the $2 billion in discretionary spending that the HITECH Act gave to the Office of the National Coordinator for Health Information Technology, if those funds are considered "un-obligated balances," would be rescinded if H.R. 408 were to be enacted.

In contrast, Section 302, which proposes to flat-out repeal large chunks of the stimulus law including the incentive payments, does not distinguish between obligated and un-obligated balances.

But what happens to the rest of HITECH and its authorization for establishing stronger privacy and security rules, and establishing Regional Extension Centers, statewide health information exchanges, college-level health I.T. curricula and expanded HIPAA transaction sets, among other provisions?

H.R. 408 does not appear to repeal all of HITECH, just its authorized funding that remains. The bill does not specifically mention HITECH or its title within the stimulus law.

Asked for clarification of HITECH's future, a spokesperson for Rep. Jordan replied, "I forwarded your question to one of our policy guys and here was the answer: 'Unless the HITECH Act was stuck in the tax part of that bill (and I assume it was not), it is repealed.'"

The HITECH Act was not in the tax provisions part of ARRA, yet it does not appear to be repealed in totality under H.R. 408. Rep. Jordan's office has been asked to provide further clarification. Officials of the Department of Health and Human Services decline to comment on the bill's provisions. "Federal agencies implement the programs in current law," according to a spokesperson. "We don't comment on pending legislation."

Enactment of H.R. 408 would be difficult as Democrats retain slim control of the Senate and President Obama retains his veto pen. That said, the bill clearly states House GOP targets for spending cuts and provisions of the bill could be inserted into other bills moving through the legislative process. Text of H.R. 408 is available at congress.gov.

--Joseph Goedert

 

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