Lawmaker suggests ONC overstepping its authority over HIE governance

During a House Energy and Commerce Subcommittee on Health hearing last week U.S. Rep. Morgan Griffith (R-Va.) questioned whether the Office of the National Coordinator for Health IT (ONC) is overstepping the authority it has over health information exchange (HIE) governance.

“The President’s fiscal year 2016 budget calls for $92 million for the Office of National Coordinator for purposes including the transition to a governance approach for health information exchange,” Griffith told Health and Human Services Secretary Sylvia Burwell during the hearing. “In 2012, an HHS request for information noted that congressional authority is granted to the ONC in the 2009 HITECH Act that would support this governance mechanism. Madam Secretary, I hold in my hand a copy of a Congressional Research Service report dated January 7, 2015, that suggests ONC does not have the authority to support the ONC governance structure outlined in the President’s budget.”

According to an article in Health Data Management, the report—“Scope of the Legal Authority for the Office of the National Coordinator for Health Information Technology—includes analysis that suggests that ONC’s statutory role largely focuses on proposing “standards, implementation specifications, and certification criteria” that support several incentive programs that encourage, rather than require, private entities to adopt certified health information technology.

Furthermore, the report states that the HITECH Act, through which ONC was established, “specifically limits the authority provided under the Act, in that the statute cannot be construed to ‘require a private entity to adopt or comply with a standard’ proposed by ONC and promulgated by HHS.”

“I am concerned when the experts are telling me—both legal and otherwise—that this agency is going beyond its scope of authority, that this is a problem within this administration, and that we should be careful that we should have any agency moving forward without congressional authority,” Griffith told Burwell. “I’m going to ask you to . . . work with me to make sure that the ONC does not overstep its authority granted to it in legislation by this Congress.”

An ONC spokesperson later told Health Data Management that the draft Nationwide Interoperability Roadmap it recently issued has an approach that “is in line with our FY 2016 Budget which describes how we will identify the rules of the road needed for information to flow. We believe the HITECH Act Section 3001 (c)(8) specifically provides ONC with the appropriate authority to establish a governance mechanism for that nationwide health information network.”