Congress is considering how health information technology (“HIT”) could enhance the quality of healthcare as well as the privacy issues implicated with the use and transfer of electronic health records. In particular, Congress is considering how to leverage technology to increase the availability of healthcare, reduce costs, and improve access to medical records. During a recent hearing, Sen. Kennedy (D-MA) indicated through a prepared statement that “the health care industry continues to lag behind in implementing information technology, even though the potential for major improvement has been known for years.”4 He suggested that federal grants could spur investment in technology by the healthcare industry. In addition to improving healthcare, Congress is considering how investment in HIT could stimulate the economy. The proposed stimulus bill, H.R. 1, American Recovery and Reinvestment Act, would appropriate billions for investment into HIT technologies and for acquisition of HIT equipment by healthcare providers.

Two Senate committees held hearings in January 2009 to consider how HIT could improve the quality of healthcare and reduce healthcare expenses. The committees also considered the privacy issues implicated by HIT. Below is a summary of the key issues from those hearings.

A. The Senate Committee on Health, Education, Labor, and Pensions Working Group Quality Healthcare (“Working Group”)

The Working Group held a hearing on January 15th to consider how technology could improve the quality of healthcare and reduce inefficiencies and expenses in the national healthcare system. Through a prepared statement, Sen. Kennedy (D-MA) recognized HIT’s value to the healthcare system and indicated that HIT could be used to reduce errors, revolutionize treatment, and increase access to quality healthcare at lower costs. Other members weighed in on the issue during the hearing. Sen. Mikulski (D-MD) stated that the government would rely on the private sector to help develop and implement HIT. Sen. Merkley (D-OR) inquired into the kinds of efforts necessary to bring HIT to rural communities and the type of patient data that could be made available to healthcare providers should HIT be implemented nationally.

The Senators heard from several witnesses. Jack Cochran, Executive Director of the Permanente Federation, urged Congress to consider investment in the nation’s healthcare delivery system as a means to stimulate the economy, but cautioned that HIT is not a “silver bullet” to cure all the issues facing US healthcare. He stated the HIT could improve healthcare quality and efficiency and expressed support for federally sanctioned standards. Peter Neuport, Corporate VP of Microsoft Health Solutions, expressed support for providing incentives to invest in HIT. He explained that the incentives should: (1) be technology neutral, (2) reward innovative doctors who use the Internet to communicate with their patients, and (3) focus on making data interoperable. Mary Grealy, President of Health Leadership Council, expressed support for a national health information network. She indicated that such a network requires a funding mechanism to support the IT infrastructure investments necessary to implement HIT and national standards to ensure nationwide interoperability. She opposed prescribing specific technology that ought to be implemented. Valerie Melvin, Director of IT at the Government Accounting Office expressed support for early Congressional oversight of HIT and stated that protecting the privacy of personal electronic health data would be essential to gaining support for the widespread adoption of HIT. Janet Coorgan, CEO and President of the National Quality Forum, stated that federal funding is vital to improving healthcare safety, quality, and affordability.

B. The Senate Judiciary Committee

The Senate Judiciary Committee held a hearing on January 27th to consider the privacy issues implicated by an electronic healthcare system. In particular, the Committee broadly considered the types of privacy and security safeguards necessary to protect consumer privacy in a national electronic health system. Sen. Whitehouse (D-RI) stated that HIT could be a valuable tool in ridding the nation’s healthcare system of waste, but that privacy issues implicated by HIT cause him concern. Sen. Leahy (D-VT) highlighted that privacy plays an important role in a person’s decision to seek healthcare. He also stated that health records should be computerized within five years. Sens. Hatch (R-UT), Klobuchar (D-MN), and Cardin (D-MD) all expressed support for HIT systems, while recognizing that HIT does raise some privacy issues.

The witnesses expressed support for HIT, but cautioned that the effectiveness of HIT would largely depend on the implementation of privacy and security measures. James Hester, Director of the Health Care Reform Commission of the Vermont Legislature, described Vermont’s experience with implementing HIT. He indicated that additional funding might increase HIT implementation, but that consumer confidence in technology influences adoption of HIT. He expressed support for federal guidelines for the states to follow when implementing HIT. Deven McGraw, Director of Health Privacy Project at the Center for Democracy and Technology stated that consumers’ privacy concerns impede the implementation of HIT. She called for additional privacy protections and recommended that Congress enact legislation addressing ehealth. Adrienne Hahn, Consumer Union, expressed support for developing principles for implementing HIT with safeguards and for the public disclosure of de-identified patient data for research purposes to improve healthcare. Michael Stokes, Microsoft, explained that trust in HIT could be fostered through transparent practices, consumer control, and data security. He stated that consumers should control how their information may be shared.

John Houston, University of Pittsburgh Medical Center, expressed concern with specific legislation before Congress. He stated that the privacy provisions of the Health Information Technology for Economic and Clinical Health Act would raise costs for providers while creating little benefit for consumers. He suggested imposing limitations on the use of identifiable health information for healthcare operations purposes. He also stated that the burden of de-identifying patient information could deter covered entities from performing certain healthcare functions. David Merritt, Center for Health Transformation and the Gingrich Group, expressed support for providing consumer control and consumer notification of health record breaches, but opposed providing patients with the option to opt out of the de-identification of their information for research purposes.