TOPEKA — The board members responsible for overseeing the digital exchange of Kansans' health records today discussed details of how they might hand over the board's authority to the state, but then decided against adopting a formal transition plan.

Instead, members of the Kansas Health Information Exchange board decided to draft a letter to Gov. Sam Brownback asking for his input on the transition.

"The Governor's Office may have some thoughts about this, so is it really necessary to adopt a transition plan at this point? Let's just express our desire to move in that direction and ask for their help," said board member Jerry Slaughter, executive director of the Kansas Medical Society.

At its last meeting, the KHIE board approved transferring its duties to the Kansas Department of Health and Environment within a year, provided the Legislature acts to make the transfer legal.

The board also asked staff to draft a plan for unwinding KHIE such that doctors and hospitals would not be exposed to legal risk. Providers who exchange patient information via a KHIE-approved network are granted some immunity from lawsuits should they inadvertently breach patient privacy.

Transition plan

Today, KHIE chief executive Bill Wallace spent an hour presenting a possible three-stage transition plan:

• Stage 1: Immediately begin drafting KDHE regulations from KHIE's policies, which currently constitute the legal protection for providers who exchange digital patient information. Other proposed transition activities included discontinuing certain consulting contracts and services.

Board members also discussed immediately beginning work on drafting legislation needed to make the transfer legal. Essentially, current law must be changed granting regulatory authority over health information exchange to KDHE instead of KHIE. The earliest proposed changes to the law could be considered by lawmakers is Jan. 14, when the Legislature convenes the 2013 session.

• Stage 2: If and when the Legislature passes needed changes to the law, KHIE would contract most of its duties to KDHE. The duties would include handling patient opt-out requests and complaints, as well as monitoring the networks for compliance with KHIE policies.

The board could then terminate Wallace and two other KHIE employees, as well as discontinue legal, accounting and payroll services.

The KHIE board would also begin to serve as an advisory body to KDHE. However, it would retain its authority to sanction networks in the state until changes in the law became effective.

• Stage 3: Once the modified law is in effect — presumably July 1, 2013 — KHIE would legally dissolve itself.

"We feel this is a prudent plan that doesn't expose the board to undue risk as a result of walking out of here and turning our backs on anything. It is an orderly plan," Wallace said. "Obviously, we find ourselves in a situation where we're constrained by the law that's on the books."

The goal of transferring the authority to KDHE is to reduce costs. Operating the board was expected to cost about $400,000 a year as an independent entity versus about $54,000 a year if the board's regulatory functions are assumed by the state.

Seeking to expedite the plan

Aaron Dunkel — deputy secretary at KDHE and liaison to the KHIE board — said the letter being drafted to the governor should seek action that could expedite the transition to KDHE.

"We've already passed a resolution supporting (the transition) by July 1 — is there a way that an (executive order) could be used to speed up that effective date of the transition?" Dunkel said. "It's a relatively simple ask."

But Wallace said the board had yet to approve a transition that would be effective before the law is modified.

Anonymous complaints no longer allowed

Board members today also made several adjustments to policies, including one that removes the board's obligation to investigate anonymous complaints.

Slaughter said that members of the board's policy subcommittee had unanimously approved the change because anyone who wanted to could impair a network's ability to conduct business simply by filing numerous frivolous complaints.

Wallace said so far five anonymous complaints had been filed with one of the networks, three of which likely were from the same person.

KHIE legal counsel Jeff Ellis advised against the change saying that it would be "foolhardy" for the board to not investigate anonymous complaints, even if it no longer has a mechanism for doing so.

"Every high-functioning, ethical organization nowadays allows for and encourages anonymous complaints so that you can surface a problem before it becomes a bigger problem," he said.