Feb 5, 2009
Alexandria, Va. – The National Association of Chain Drug Stores (NACDS), National Community Pharmacists Association (NCPA), and Food Marketing Institute (FMI) sent a letter today to Senate Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY) expressing support for important health related provisions in the “American Recovery and Reinvestment Act of 2009” (“Act”), but urging the leaders to reconsider so-called “privacy” health information technology (HIT) provisions that would inhibit pharmacies from providing patient care. Following is the letter that was sent:

Re: Urging review of HIT “privacy” provisions in “American Recovery and Reinvestment Act of 2009”

Dear Senators Reid and McConnell:

The undersigned organizations, representing both independent and chain community pharmacies, including supermarkets and mass-merchants, are writing to express our support for important health related provisions in the “American Recovery and Reinvestment Act of 2009” (“Act”). The bill contains strong language to promote the use of health information technology (HIT) while ensuring patient privacy and includes desperately needed assistance to state Medicaid programs through an enhanced Federal Matching Assistance Percentage (FMAP) rate. The need for both is crucial during this historic economic downturn and we are pleased to offer our support for this critical legislation.

We appreciate that you have included provisions for HIT funding for health care providers, including pharmacies and pharmacists. We are concerned, however, that some of the privacy-related provisions in the bill will require pharmacies to devote extensive time and resources toward compliance. With this in mind, we ask you to clarify that the HIT funding for health care providers is available to pharmacies for adopting and upgrading HIT systems to ensure their compliance with the privacy-related provisions, particularly the requirement to provide individuals with an accounting of all disclosures of protected health information (PHI). Pharmacies are an integral part of their local communities and the health care delivery team. In some medically underserved communities, pharmacies are the only health care providers available to patients. Pharmacies must adopt HIT to continue to meet patients’ needs, but are challenged in finding the resources to do so, especially for the major investments that would be necessary under this bill.

Let us be clear about our commitment to safeguarding patient data. We have taken, and continue to take extensive measures to ensure patient privacy. We commend you for important updates in the Act to the HIPAA Privacy Rule that would further protect patient privacy. We agree with the need for a regulatory structure for holders of PHI that are not already covered under HIPAA, and that patients should be notified of certain privacy breaches.

With respect to the notification of privacy breach, we urge the Senate to oppose any amendments to the definition of “breach” or to the breach notification requirements under Subtitle D of Title XIII. We fear any amendments would weaken this provision or potentially render the provision unworkable for patients and health care providers.

In addition, we strongly support Senator Harkin’s amendment to Section 13406 of Subtitle D of Title XIII, which allows health providers like pharmacies to communicate with their patients about important health care items and services. These communications save money and lives by urging patients to follow their doctors’ prescriptions, such as prescription refill reminders.   

We believe it is critical to foster HIT adoption without attaching privacy mandates that would actually frustrate the goals of HIT adoption. We believe the legislation on the floor this week achieves this goal, and we ask that you pass these privacy provisions without further amendment.

We also extend our thanks for increased Medicaid funding in the legislation. Pharmacies care for millions of low income patients every day and see first hand the devastating effects that a slowing economy has on access to heath care. A weak economy means more Americans without insurance and more people having trouble affording prescription medicines and high quality professional services offered by pharmacists. Our patients – especially those of modest means -- feel acutely the ill effects of this economic crisis. An increase in Medicaid funds will help avert additional cuts in Medicaid programs and serve as an important investment that will preserve coverage for millions.

We appreciate your attention to our views and stand ready to be of assistance to you as you work to pass this critically important legislation. .

Sincerely,

Food Marketing Institute
National Association of Chain Drug Stores
National Community Pharmacists Association

CC:
The Honorable Daniel Inouye, Chairman, Senate Appropriations Committee

The Honorable Max Baucus, Chairman Senate Finance Committee

The Honorable Edward Kennedy, Chairman Senate HELP Committee

The Honorable Thad Cochran, Ranking Member, Senate Appropriations Committee

The Honorable Charles Grassley, Ranking Member, Senate Finance Committee

The Honorable Michael Enzi, Ranking Member, Senate HELP Committee

The Honorable Tom Harkin, Chairman, Senate Appropriations Subcommittee on Labor-HHS-Education