When the Senate health committee recently released its draft health IT legislation, industry groups had high hopes the bill would solve ongoing EHR problems.

Although the Healthcare Information and Management Systems Society remains optimistic about the proposed legislation, the nation’s largest HIT association is concerned that some provisions could have unintended consequences that could stifle innovation and add complexity to the HIT landscape.

Even so, HIMSS is encouraged that many of the challenges associated with EHRs are reflected in the committee’s discussion draft, says Samantha Burch, senior director of congressional affairs for HIMSS.

“We certainly appreciate the very inclusive process that they have gone through,” says Burch. “In every section of the bill, we agree with the intent, but what we tried to do is provide feedback so that they could take that intent and translate it into workable, productive policy.”

Next stop for the draft legislation is the Senate health committee’s February 9 mark-up session, intended to include revisions based on comments from groups such as HIMSS. Burch points out that the health IT bill is part of a larger “biomedical innovation” legislative package for which the committee is seeking approval this year.

“We anticipate that there’s going to be quite a bit of process ahead in how the committee decides to move forward,” she says, adding that it’s uncertain whether the bill will be passed this year. “That’s certainly the committee’s intent: to move it forward and hopefully have a conference committee with the House regarding their 21st Century Cures Act and ultimately have a bill that the President can sign into law.”

The proposed legislation seeks to promote interoperable health information exchange through several measures, including convening existing data sharing networks to develop a model framework and common agreement for the secure exchange of health information. It also supports the secure exchange of electronic health information by certifying that one EHR product is capable of trusted exchange with many other EHR products.

There are multiple technical solutions on the horizon that the market should be permitted to develop to address evolving industry needs.

“We agree that a trust framework is critical to enabling health information exchange, but believe these provisions are duplicative of multiple private sector efforts well underway that should be fully leveraged,” the HIMSS comments note. “For example, Carequality, convened by the Sequoia Project, utilizes a trust framework (including technical, legal and governance components) with broad public-private stakeholder participation. Rather than shifting this activity to the federal government, ONC should engage in an advisory capacity, as it currently does in the case of Carequality. There are multiple technical solutions on the horizon that the market should be permitted to develop to address evolving industry needs.”

The draft legislation also includes provisions of the TRUST IT Act introduced by Sens. Bill Cassidy, MD (R-La.) and Sheldon Whitehouse (D-R.I.) that would make health IT systems accountable for their performance in three key areas: security, usability, and interoperability. In particular, the bill seeks to establish a HIT rating system to enable consumers to compare certified products on those three criteria.

However, HIMSS is concerned that a rating system based on user feedback would “introduce excess subjectivity if not appropriately weighted in the star rating methodology.” As the group points out, EHR users “do not always have an in-depth understanding of what is implemented by the product as opposed to the environment in which the product is being used.” The rating system “should be largely based on objective measures, with some grounding in existing certification criteria,” HIMSS asserts.

At the same time, HIMSS argues that such a rating system is not necessary, given the fact that there are currently private sector groups that evaluate EHRs. “Rather than developing a new rating system, consideration should be given to leveraging these private sector efforts,” the group told the committee.

The proposed legislation also requires vendors seeking certification to attest that they “permit unimpeded communications among and between health IT users and an authorized certification body, the ONC and the Office of the Inspector General regarding usability [and] interoperability.” However, HIMSS says there are “more appropriate channels to report user feedback than the electronic health records system, which should be focused on clinical functionality.”

The draft bill targets the problem of information blocking—the act of intentionally interfering with the sharing of electronic health information between doctors and hospitals—giving the Department of Health and Human Services’ Office of the Inspector General the authority to investigate and establish deterrents to information blocking practices by both providers and vendors. Nonetheless, HIMSS believes it is important to establish a process as well as criteria to judge specific cases in which a provider or vendor is found to be engaging in information blocking.

The draft bill would mandate that vendors must report on the performance of their products every two years, and it would authorize fines—and, in some cases, decertification of products—for failing to report.

“In the event that a product is decertified, we believe it is important to provide a hardship exemption from the Meaningful Use penalty to allow time for the provider to implement new certified EHR technology,” HIMSS suggests. “In addition, we believe it is important to ensure the exemption is sufficiently long enough to safely and effectively migrate to a new system, which, in many cases, may not be achievable in one year.”

HIMSS also has reservations about the draft bill’s call to abolish the current HIT Policy and Standards Committees and establish a new committee to replace them. HIMSS said it believes this change would “cause a significant break in the momentum of current work” causing a “vacuum in a critical time of unprecedented change in the health IT and healthcare delivery landscapes.” Instead, HIMSS recommends keeping the current Federal Advisory Committee Act structure and redirect activities identified in the draft to the appropriate existing HIT committees.

While HIMSS supports the overall goals of the draft bill, such as reducing regulatory and administrative burdens on providers by decreasing unnecessary physician documentation, HIMSS believes the senate’s legislative push to allow nurses to document on behalf of doctors could cause problems.

“HIMSS would caution against simply shifting physician documentation requirements to other healthcare professionals,” HIMSS says in its comment letter to the committee. “For example, nurses already have documentation burdens of their own, which would be further compounded if nurses or other healthcare professionals are required to assume the documentation work of physicians.”

Instead, HIMSS recommends the development of “robust electronic clinical quality measures (eCQMs) that are a byproduct of care delivery and can be collected more easily within the framework of a normal clinical workflow.” These eCQMs, the group believes, would effectively shift the effort from “documentation of non-essential information, simply to meet a measure, to documenting information focused on achieving improved outcomes for patients.”

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