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Below is the HillCo client report from the September 24 House Public Health Committee hearing
 
The committee met to consider the following interim charges:
 
Charge # 3. Identify strategies to support the efficient exchange of electronic health information with Texas Health and Human Services enterprise agencies. Examine legal and technical issues around the accessibility of information held in registries maintained by state agencies to authorized health care providers. Identify issues related to health information exchange and providers' liability, as well as concerns related to transitioning patient data in cases where a provider selects a new electronic health record vendor.
 
Charge # 6.  Conduct legislative oversight and monitoring of the agencies and programs under the committee’s jurisdiction and the implementation of relevant legislation passed by the 83rd Legislature, including HB 15 (83R). In conducting this oversight, the committee should:
 
a. consider any reforms to state agencies to make them more responsive to Texas taxpayers and citizens;
b. identify issues regarding the agency or its governance that may be
appropriate to investigate, improve, remedy, or eliminate;
c. determine whether an agency is operating in a transparent and efficient manner; and
d. identify opportunities to streamline programs and services while maintaining the mission of the agency and its programs.
 
HB 15 Update
 
See attached for HHSC presentation on HB 15
 
Patricia Vojack, HHSC

  • The Perinatal Advisory Committee (PAC) is working on a rule for neonate designations
    • Establishing care regions
    • Identifying levels of care
  • A stakeholder meeting was held Tuesday on the first draft of the rules
  • Next step is to designate maternal levels of care
    • The PAC must submit a report to HHSC by September 2015 with their recommendations
  • Kolkhorst – Are all stakeholders being heard?
    • Yes
  • King – is this just in Medicaid or for all payors?
    • Designation applies to facilities only
  • Beginning September 2017 NICU designation standards must be implemented to received Medicaid reimbursement

 
Cris C. Daskevich,  Texas Children's Hospital and CHAT

  • Has been involved in NICU care for over 15 years
  • Texas Children’s model is right care, right place, right time
  • Largest NICU in the country
  • Babies are transferred to them from all over the state
  • Partner with community hospitals to help support 18,000 births across Houston a year
  • Kolkhorst – there was a lot of tension worked out in the passing of HB 15
  • Have telemedicine reimbursement concerns
    • Looking into supporting rural hospitals with reading sonograms for early diagnosis
  • They have 30 maternal fetal specialists
  • The AAP guidelines are the national standard, but it will be difficult for all facilities to meet their desired designation based on these new 2012 standards
  • There is a lot of work to be done on back transports
    • There is no reimbursement mechanism
  • Use the Vaughn database, the national neo-natal database, to track data benchmarks
  • Collaboration is very important, working with MCOs
  • King – how many locations in Texas have ECMO?
    • All level 4 NICUs in major metropolitan areas of Texas
  • Kolkhorst re-emphasized that they need to look at reimbursement for back transport
    • If a child can be transported to a lower-level NICU that cost less and is closer to home, this should be utilized and reimbursed

 
HB 3201 Update
 
Julie Hildebrand, Texas State Board of Dental Examiners (TSBDE)

  • Kolkhorst – Last session there was a lot of discussion about dental Medicaid fraud, wants a follow up
  • HB 3201 passed
    • Wanted dental board to be strengthened and give them proper oversight
    • Have begun collecting the 55 dollar surcharge
    • Sent a questionnaire to dentists upon license renewal beginning September 2013 – 90% replied
      • Asking about DSO information
      • Report due to the legislature on November 1st
      • Those that are non-compliant with the questionnaire will be fined
    • Creating a list of all of the DSOs in Texas
      • Will send letters to DSOs asking the questions that HB 3201 allow for
  • In investigations of complaints, if they find that a DSO could be the cause of the complaint they are collecting records
  • Kolkhorst – have there been more complaints about the place of business or the practitioner?
    • Mixed
  • Kolkhorst – in clinics, do children see a different dentist every time?
    • Depends on the office
  • Guerra – there was confusion last session if a practice was owned by a dentist or some corporation – where are we?
    • The survey is collecting that info
    • The question is who really owns the practice
      • They are finding some non-dentists and taking action
      • Concern when there is a contract between the DSO and dentist where the DSO has all the power
        • Developing rules to prevent this
  • Kolkhorst- last session we heard that if a dentist had a complaint against them it took almost 500 days to remedy
    • Statute was changed to increase the capability to process the complaints faster with more FTEs
      • Previously 2 board members had review all complaints
      • Now they have a dental review panel of 100 dentists which has improved quality
      • Return on complaint is now 14-30 days based on complexity
  • Instated a rule that parents should be in the dentist room with their child
    • Included provision that if the dentist doesn’t allow a parent in the room, they need to document every individual reason
  • Amending current rules to clarify what contracts must look like between DSOs and dentists
  • Kolkhorst – the Dental Practice Act states that dentists own their own practice – DSOs do back office work and never can dictate a dentist’s practice; where are we?
  • Kolkhorst – has there been stakeholder input on this rule?
    • Comments on both sides – has been published in the Texas register for further comment
    • Have a subcommittee focusing on this rule
    • Second public hearing will be October 1
  • Kolkhorst – what is the main request or complaint?
    • There is concern that if the rule goes into effect is will change the way dentists practice
  • Dentists cannot give sole control over accounting, records, etc to DSOs
  • Kolkhorst – who owns the records? Sticky question
    • The dentist is the custodian of the records
    • If a dentist leaves a practice the records cannot be relinquished to a DSO, but must be left with the owner/dentist
  • Have had complaints from dentists that DSOs will not give them records
  • The board doesn’t have the authority to regulate DSOs
  • The Rule clarifies that no matter what a DSO does, the dentist is held responsible
  • Kolkhorst – There is no law against DSO’s soliciting patients?
    • No, but can take disciplinary action against the dentist – the rule strengthens dentist responsibility and accountability
  • Kolkhorst – So we don’t need more laws, but we need to enforce rules and laws on the books and hold the dentist accountable
  • Kolkhorst closed by saying she wants a stronger TSBDE

 
Electronic Health Information
 
See attached for HHSC Presentation on Electronic Health Information
 
Mary Robinson, TMB

  • A physician is the custodian of medical records for seven years or until a child turns 21
  • TMB can appoint a custodian if asked to do so if records are abandoned
  • Put out a bid for contact for a state repository and received zero bids
  • Unsure of the future with EMR if records are abandoned
  • King – what is the law for fraud if someone accesses another individual’s records via a portal log in?
    • HIPAA primarily would regulate that

 
Patricia Vojack, HHSC

  • Both the Texas Medical Privacy Act and HIPAA set privacy standards for private health information (PHI)
  • HHSC uses PHI for:
    • Claims data
    • Managed care encounter data
    • Data analytics
    • The Medicaid Eligibility Health Information System
  • Contracts between HHSC and its vendors are for claims administration, eligibility determination
  • HHSC has a very well developed privacy program
    • Hired a new privacy program director in August 2014
    • Federal requirement through HIPAA
  • HB 300 from the 82nd Legislative session strengthened privacy for PHI
    • Requires employee training
    • Requires agencies that receive consumer complaints regarding PHI to report to the AG
    • THSA developed privacy and security standards and HHSC took those standards to promulgate rules
    • Required several reports to the Legislature from January 2013 to January 2014
  • King asked what division she works under
    • Risk and Compliance
  • King – is there any information that is not independently identifiable in the state?
  • King – do patients know that their information is being collected?
    • They receive notice
    • King said that she believed that to be false
  • King – what consumer complaints do you have?
    • Do not have any to report from HHSC
    • Working internally to establish one place for all complaints to be submitted
  • King – why are only Medicaid patients being notified about data being collected about them?
    • HHSC is the Medicaid agency, unsure of what TDI is doing with the rest of the insured population
  • Tony Gilman, THSA
    • In Texas consent is not required for data collection
    • HB 300 established that authorization is needed from the patient for marketing and research purposes
    • Varies for different kinds of data, but many have consent policies in place
    • King – what is the difference between consent and authorization?
      • THSA general counsel will follow up
    • Collier is concerned that a common person wouldn’t even pay attention to the privacy notice
      • There is no detail in state law that requires a specific format for the notice

 
Kalunde Wambua, Director of Health Policy, DSHS

  • Head of the HIT division that was created 2 years ago
  • Developed strategic priorities
  • There are 200 electronic programs, systems or registries under DSHS purview
    • Rules are different on sharing and collecting data for each program
  • DSHS had to change their system to receive data from providers with certified EHRs
  • They are trying to make reporting easier for the provider community
    • Establishing a portal “Health Services Gateway” to allow reporting in just one place, and then data will be pushed to the right registry or division
    • Working to see which programs they can add onto the portal
    • Collier – do you need more employees or money to do this?
      • Already built portal with existing funds
  • Kolkhorst asked for information about which data is mandatory public health reporting
  • King asked what HHSC Circular 44 was
    • Web newsletter from Com. Janek
    • Instructs each agency to come up with an interoperability plan by the end of 2015
  • Working on identifying laws around sharing or collection of certain data
    • Creating a tangible list of changes that need to be made
  • Davis asked if the portal was 2 way
    • Has the ability to be but they need to identify all the laws with sharing particular data
  • Kolkhorst said that a 2 way street is dangerous
  • King – THCIC already does this, and it is supposedly de-identified
  • Guerra – does the data contain regional or demographic information?
    • Depends on the registry

 
Tony Gilman, THSA

  • Working towards local health information networks being connected to HIE Texas, and then connect to DSHS
  • Collier asked how the networks initially began
    • Part of the Stimulus bill, received 30M in funding
    • THSA created the state HIE plan per statute
  • It is a “network of networks” model with interoperability standards
  • King  – very concerned that her district is in the “whitespace”
    • Wants more information about why they are not a part of a network
  • Collier – do the HIEs use state dollars?
    • No, they have a sustainability model
    • Users of the exchanges pay fees to access the HIE network
  • Some providers are hesitant to use HIEs due to questions of liability
    • There is no legal precedent on how they would be held liable because HIE is so new
    • Doctor concern of missing something in the medical record that leads to bad health outcomes as well as potential breach by a secondary doctor/specialist
  • The statute is silent to physician responsibility regarding maintenance of medical records, something for the committee to consider this session
    • There needs to be a place responsible for maintaining records if the doctor is not able to
    • TMB will continue to hold the doctor liable for records until new statute speaks to this
  • THSA developed a voluntary certification process that potentially would help certified entities mitigate fees if there is an infraction
    • Believes that certification would be made stronger if it could provide a safe harbor from fees rather than just mitigation

 
Dr. Joe Schneider, Health Information Exchange Committee, TMA

  • Discussed the disconnect of information due to public health registries not linked to EMR systems
    • Ex: newborn hearing screening information
  • The HHSC gateway will be extremely beneficial and will be a big step forward in eliminating multiple pipelines
  • Kolkhorst – bidirectional ability creates a bigger opportunity for breaches
  • Challenge is that many providers and smaller facilities cannot afford to hire proper security systems or personnel
    • Encryption helps ensure security

 
Nora Belcher, Texas E-Health Alliance

  • Vendors are building the airplane in mid-air because the federal government keeps changing the rules
  • Encryption is crucial to security
  • Need a two-step process to access PHI in a system, like using a password and a fingerprint or swipe card
    • Without it, left open to “brute force” break ins
  • Texas Children’s has encrypted everything, even the credit card swipe on the Coke machines
  • Need better training of internal employees and following through by firing bad actors
    • Some bad actors are taking screenshots of PHI with their cell phone to steal identities
  • There are four regional extension centers in the state
    • Great support in getting doctors electronic
    • They could be really helpful in identifying security measures
  • “The gateway cannot come fast enough,” it will save providers so much money from having to buy multiple interfaces to submit data to
    • Interfaces cost up to $15,000 and require updates
  • Texas is recognized nationally as setting the bar high in privacy and security
    • Need a culture of safety and accountability to go along with the high bar that has already been set
  • Kolkhorst – likes the incentive of “if you do this, you won’t be held liable for that”
  • Discussion about transitioning patient data between vendors
    • Medical retention laws weren’t built for the electronic age
    • Meaningful use measures didn’t prescribe that all vendor formats be standard
    • Transition of data equals data loss
    • Vendor switching is beginning to happen more frequently to replace old systems for more user friendly ones
    • There are 600 products on the market currently going through consolidation which will make this problem decrease
    • All major certified EHRs have signed on to a Developer’s Code of Conduct that addresses the transition issue
    • Vendors don’t win by making their systems difficult
  • There is no free solution to this problem
  • Supports more specificity in requirements for HIEs and the idea of a safe harbor for errors in data retention

 

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