Kansas Health Institute | Information For Policy Makers. Health for Kansans.

TOPEKA — Long-simmering tension over a plan to retool Kansas privacy laws in order to speed development of a statewide, electronic health information exchange is no longer behind the scenes.

Jeff Ellis, who chairs a group of lawyers working to support the state's e-Health Advisory Council (e-HAC), made it clear to fellow council members on Wednesday that he was fed up with what he characterized as lack of response from Kansas Department of Health and Environment Secretary Roderick Bremby.

Ellis is an attorney with the Kansas City firm of Lathrop & Gage.

The Ellis-led working group of 32 attorneys is one of several that have been drafting the various aspects of a strategic and operational plan for a Kansas health information exchange, with the goal of having the exchange up and running soon enough to meet some of the looming deadlines of the American Recovery and Reinvestment Act of 2009.

The economic stimulus bill included billions of dollars of incentives for states, medical providers and others to encourage the use of electronic health information technology. The federal government has set the goal of every American having an electronic health record by 2014. Kansas medical providers and others are anxious to see an exchange in place quickly so they don't miss out on the incentives, which in 2015 become penalties for those who aren't certified and in the system.

The e-HAC plan for the exchange and the non-profit corporation that will oversee it is approaching final draft stages with agreement reached among the council's members on most of the key elements. But still left out of the plan are the recommendations from the lawyers, the first subgroup to complete its work back in January.

Ellis pushed the attorneys to craft their recommendations quickly so that they could be presented to this year's Legislature.

But Bremby, designated by the governor to oversee the state's health information technology efforts, earlier this year, in a terse exchange with a few objecting council members, told the panel that no action would be taken on the legal aspects of the exchange plan until the lawyers' recommendations had been reviewed by the Attorney General and later by KDHE and other state attorneys.

The Legislature since came and went without being presented the council's legal proposals, prompting private complaints from some members that Bremby had acted arbitrarily and was slowing development of the exchange.

With Wednesday's council meeting, some of those tensions and privately expressed complaints became public.

Ellis told council members he was frustrated because Bremby has cited "problems" with the lawyers' recommendations but never spelled out what the problems were. He also said Bremby cited a lack of consensus among the attorneys as a reason for not moving forward with the recommendations despite the fact that all the attorneys on the subgroup agreed to them, including lawyers for KDHE.

"It's troubling to me that we had 32 lawyers who spent a long time on this," but nothing has moved forward, Ellis said. "We need to resolve that. I think we (the working group) can address the problem, if we're given the information of what the problem is."

Bremby was originally scheduled to attend the e-HAC meeting on Wednesday but had other obligations - a governor's cabinet meeting. KDHE Assistant Secretary Aaron Dunkel sat in for Bremby at the e-HAC session.

Ellis told fellow council members he had hoped to discuss his concerns directly with Bremby during the meeting.

"We were well ahead of most states on this," Ellis said, describing his "frustration." But because of the foot dragging, "we are not the thought makers we once were. We don't mind the conversation telling us we're wrong. We just don't want to be ignored."

Bremby was reached Thursday by KHI News Service for response to Ellis' criticisms.

"I'm disappointed but not surprised that Jeff expressed these concerns publicly," Bremby said. "Some frustration is to be expected from these types of things. But frankly, I expected these concerns would be discussed privately. Hopefully, Jeff communicated to the group that we (Bremby and Ellis) have had ongoing conversations about this as late as this week."

The legal working group developed a plan for a non-profit, public-private corporation to launch and manage the information exchange. Its recommendations also spelled out various areas of state law that the lawyers concluded needed to be changed to encourage medical providers to participate in the exchange without fear of liability from a sometimes conflicting "patchwork" of federal and state privacy laws.

Bremby said he didn't want to carry the legal proposals to the Legislature this session, which Ellis was keen to see happen, because e-HAC hadn't yet developed its overall plan. And Bremby said there was nothing in the lawyers' recommendations that couldn't wait for next year's session.

"Being responsible for this project, I believed we weren't far enough along," Bremby said. "Nor was it essential for the Legislature to act on anything this year.

"We pulled back on some of the recommendations, but the bulk of the work the legal group did on crafting a public-private entity is going forward," he said.

The governor is expected to issue an executive order later this month creating the non-profit governing entity.

The Ellis group's recommendations essentially would erase distinctions between Kansas and federal medical privacy laws.

Bremby said there were at least 17 instances where state law afforded greater privacy protections than federal law and that the KDHE attorneys' concerns revolved around those instances.

He said KDHE had three lawyers on the e-HAC legal working group and, "each expressed concerns about privacy."

Bremby said he was disappointed that Ellis expressed his frustrations publicly, "but we still need to bridge this issue and there is no harm yet in not having got to the finish line."

The deadline for completing the plan is Aug. 30. Bremby said that left time to get things worked out.

KDHE officials said a meeting was being scheduled between e-HAC working group lawyers and agency attorneys in an effort to resolve the differences. They said the meeting would occur before the next e-HAC meeting, which is scheduled for July 13.