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Report: Laws Present Barriers To Health IT

A report from the Governmental Accountability Office suggests that some laws, notably the Physician Self-Referral Act and the Anti-Kickback Act, hamper IT health systems.
Jurisprudence proves to be a significant obstacle to adoption of health-related IT, a government report suggests.

"Various laws present barriers to adoption of health IT," writes Janet Heinrich, director of health care-public health issues at the Government Accountability Office, in a letter released Monday and dated Friday to the chairman of the Senate panel that oversees health issues. "Beyond legal issues related to the privacy and security of health information, there are various laws--some specifically health-related and some not--that present barriers to the adoption of health IT. These laws involve fraud and abuse, antitrust, federal income tax, intellectual property, malpractice, and state licensing."

According to the GAO, the Department of Health and Human Services oversees 19 major health IT initiatives that cover a broad range of activities and participants. The department is spending about $228 million for these initiatives during the current fiscal year. Some of those initiatives are designed to provide overall leadership and coordination for health IT across the department, other federal agencies, and public- and private-sector organizations. Most of the initiatives--and most of the funding--are for health IT programmatic activities and grant programs administered by the department's operating divisions. These initiatives include support for the development of standard clinical terminologies and funding of demonstrations of health information systems.

The GAO sees two laws, the Physician Self-Referral Act and the Anti-Kickback Act, as impeding the establishment of arrangements among providers--such as the provision of IT resources--that would otherwise promote the adoption of health IT. "Because the laws frequently don't address health IT arrangements directly, health-care providers are uncertain about what would constitute violations of the laws or create a risk of litigation," Heinrich says. "To the extent there are uncertainties and ambiguity in predicting legal consequences, health-care providers are reluctant to take action and make significant investments in health IT."

Health and Human Services has attempted to address some of the legal barriers posed by the fraud and abuse laws, but experts told the GAO that these efforts have not been sufficient to overcome the reluctance of the providers. Further, she says, little attempt has been made by other federal agencies to address other laws that may present barriers.

Health and Human Services maintains that the federal anti-kickback and self-referral statutes, which the GAO contends hampers IT health systems, actually provide important protections against fraud and abuse and that exceptions from these statutes must be carefully crafted to exclude abusive arrangements. "We recognize the significant role these laws play in deterring fraud and abuse, but the experts we consulted consistently told us that these laws present barriers to the adoption of health IT," Heinrich writes to Sen. Judd Gregg, R.-N.H., who chairs the Health, Education, Labor, and Pensions Committee.

In fields the GAO didn't delve into--such as privacy and security standards, disease surveillance systems, and telemedicine--the department contends it has advanced health IT. The GAO, in its study, focused on health IT used in clinical health-care delivery--electronic health records, for example--and not on other health IT issues.