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D.C. Report: State Elections and Health Reform, PHR and Public Comment

November 16, 2010
by Sharon Canner
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State Elections and Health Reform. As reported last week, Republicans took control of 25 state legislatures versus 14 held prior to the election. Additionally, Republicans now control 29 governor’s offices to the Democrat’s 19 with one Independent and one undecided. GOP control has many implications for implementation of the Accountability Care Act, far more than the HITECH.

States have responsibility for establishing/operating health insurance exchanges; overseeing an expansion of Medicaid; determining standards for minimum benefits in health insurance exchanges; and developing a process for reviewing health insurance premium increases.

Many GOP governors campaigned against the Accountability Care Act. In Wyoming, for example, Governor-elect Matt Mead promised to join 21 states refuting the constitutionality of the law in federal courts. Tennessee Gov.-elect Bill Haslam criticized the new law as "an intolerable expansion of federal power." While governors cannot totally block the law, they are likely to highlight privatization and other free-market approaches, while Democratic leaders may emphasize government oversight and stricter regulation. Using state legislatures to slow the rollout of various provisions is also a possible strategy.

Personal Health Records Subject of Public Comments. As called for under the HITECH Act (Section 13424), the Office of the National Coordinator for Health Information (ONC) is required to report to Congress on privacy and security requirements for non-covered entities, with a focus on personal health records and related service providers. To inform this report, ONC is requesting comments in the following areas: (1) privacy and security and emerging technologies that deal with use of consumer health information, including mobile technologies and social networking; (2) consumer expectations about collection and use of health information that looks at consumer attitudes about the collection and use of their health information when consumers participate in PHRs; (3) privacy and security requirements for non-covered entities with a focus on the pros and cons of applying different privacy and security requirements to PHRs, mobile technologies, and social networking; and (4)other comments on PHRs and non-covered entities. The public comment period ends December 10. Responses should be entered directly on the ONC website.

To gather additional input, ONC will host a day-long public Roundtable, "Personal Health Records — Understanding the Evolving Landscape" on December 3. It will address the current state and evolving nature of PHRs and related technologies (including mobile technologies and social networking), consumer and industry expectations and attitudes toward privacy and security practices, and the pros and cons of different approaches to the requirements that should apply to non-CE PHRs and related technologies. Panels will include researchers, legal scholars, and representatives of consumer, patient, and industry organizations.

PHRs raise a number of questions from the CIO perspective including liability once the data leaves the EHR and clarifying responsibility should the patient request the deletion of certain information. Establishing specific standards for PHRs as well as minimizing the range of interfaces is also important. And like the EHR, having a way to uniquely identify patients is critical.