On December 17, 2014, President Obama signed a combination long-term omnibus spending bill/short-term continuing resolution into law (the “Cromnibus”).  The Explanatory Statement that accompanied passage of the Cromnibus includes several instructions to the Office of the National Coordinator for Health Information Technology (ONC) designed to improve the interoperability of Electronic Health Records (EHR).

Just prior to passage of the Cromnibus, the House Committee on Appropriations published an Explanatory Statement about the legislation, which includes instructions to ONC about EHR interoperability and the EHR Incentive Program.  Specifically, the congressional appropriators state that ONC “should use its authority to certify only those [EHR] products that clearly meet current meaningful use program standards and that do not block health information exchange” and “should take steps to decertify products that proactively block the sharing of information . . . .”  The Explanatory Statement also “requests a detailed report from ONC no later than 90 days after enactment of [the Cromnibus] regarding the extent of the information blocking problem, including an estimate of the number of vendors or eligible hospitals or providers who block information.”  Finally, the Explanatory Statement “directs the [ONC’s] Health IT Policy Committee to submit a report to the House and Senate Committees on Appropriations and the appropriate authorizing committees no later than 12 months after enactment of [the Cromnibus] regarding the challenges and barriers to interoperability.”

These congressional instructions to ONC come amidst widespread concern about the interoperability (or lack thereof) of EHR technology.  As we discussed in an earlier post, a widely publicized JASON report concluded that a lack of EHR interoperability “is a major impediment to the unencumbered exchange of health information and the development of a robust health data.”  JASON recommended that the Centers for Medicare & Medicaid Services (CMS) use Stage 3 meaningful use “to break free from the status quo and embark upon the creation of a truly interoperable health data infrastructure.”

It is important to note that the instructions in the Explanatory Statement are not statutory language and do not have the force of law.  And, even if they did, the specific language used leaves some wiggle room for ONC and CMS (e.g., the Explanatory Statement uses “should” and “request[]” instead of “shall”).  However, the Cromnibus specifies that the House Appropriations Committee’s Explanatory Statement “shall have the same effect with respect to the allocation of funds and implementation . . . of [the Cromnibus] as if it were a joint explanatory statement of a committee of conference.”  And federal agencies traditionally follow instructions in joint explanatory statements of conference committees because they reflect the will of congressional appropriators, even though they do not have the force of law.  It is unclear how ONC and CMS will respond to the Explanatory Statement, but the first indication may come as early as March, when the interoperability report “request[ed]” from ONC is due (within 90 days of enactment of the Cromnibus).