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[Installment 3 - Governance Considerations from HIT for the Board and Other Hospital Stakeholders]

This is the third in a series of blog posts that relate to the governance concerns surrounding developments in HIPAA, HITECH and HIT. Jim Landers of the Washington Bureau of the Dallas News  wrote an article that was published on June 24, 2009, entitled "Administration: Hospitals unwilling to share electronic records will miss out on billions in stimulus funds." His article prompted me to write on the topic as part of this series. 

In his article Mr. Landers stated:

The Obama administration's point man on electronic medical records [David Blumenthal, national coordinator for Health Information Technology] warned Tuesday that hospitals unwilling to share such files [electronic health records or EHR] with their competitors would not be eligible for billions of dollars in economic stimulus funds.

Mr. Blumenthal was further quoted by Mr. Landers as follows: “There's a fair amount of money in the law for hospitals that adopt interoperability [the means to share EHRs]. If they don't, they're not likely to be eligible for payment."

Mr. Landers correctly points out that many hospitals would be concerned that such free sharing of EHR among hospitals could give rise to the potential for losing patients to competitive institutions. I believe that, faced with deepening economic pressures and more highly educated patients with abundant choices, hospitals and their governing bodies must be increasingly concerned about material collateral issues that arise from sharing EHR with their competitors. 

I would add to the observations of Mr. Landers that embedded in EHR in one form or another could be relatively proprietary financial and business information regarding costs, charges or reimbursement of the hospital and/or treating physicians. In the exchange of EHR among hospitals, such proprietary information could be included. There exists a potential for the violation of antitrust laws for sharing of sensitive pricing and business information among competitors. The effect of such a violation could be a major financial and public relations fiasco for the hospitals. Removal or de-identification of such proprietary information could be costly or relatively impractical. This aspect warrants review by competent legal counsel and information technology and financial experts for the hospital. 

The ever-increasing momentum for acceleration of hospital conversion to EHR creates challenges and opportunities for a hospital and its governing board. On the one hand a hospital’s initiatives in this area can possibly make the hospital eligible for stimulus money to assist in the expensive cost of conversion to EHR. On the other hand there must be careful analysis at the governing board level of such an initiative in light of the risks involved.

These questions and others should be properly considered at a high level in the hospital, with board oversight, in order to avoid or mitigate liability and litigation, maintain the hospital’s reputation for candor and transparency and avoid the adverse publicity of regulatory violations and penalties.  

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When I first reviewed the Matrix and other documents released by the HIT Policy Committee’s “Meaningful Use” Workgroup, my initial reaction was “When did defining ‘Meaningful Use’ of EHR morph into attempting to use EHRs to ‘meaningfully’ reform the entire healthcare delivery system.”?  More simply put, the Workgroup’s initial recommendations seemed to me to be over-ambitious.

The term "Meaningful EHR User" in ARRA (at Title IV, subtitle A, section 4104) is described as "an eligible professional" who meets the following criteria: 

1. demonstrates that he/she is using certified EHR technology in a "meaningful manner, which shall include the use of electronic prescribing";
2. demonstrates that he/she uses the certified EHR technology to be "connected, in a manner that provides... for the electronic exchange of health information to improve the quality of health care, such as promoting care coordination"; and
3. submits information on selected "clinical quality measures".   

In my view, the first round of "Meaningful Use" requirements should be specific and reasonably achievable by healthcare providers. For example, perhaps the terms could require that the healthcare provider demonstrate how he/she uses electronic prescribing at least 75% of the time; or, how a provider records patient notes and medical encounter information in a certified EHR for no less than 75% of his/her new patient encounters.   

Interestingly, the National Coordinator for HIT decided to “send the workgroup back to work on another set [of recommendations]" for defining Meaningful Use soon after the Workgroup released its first set of recommendations. In the second go around, I think that many in the healthcare industry hope to see Meaningful Use criteria that are attainable by healthcare providers on a practical level. Otherwise, the entire premise of the HITECH Act providing incentives to increase EHR adoption could be thwarted. 

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The Office of the National Coordinator for Health Information Technology (ONC) is seeking comments on the preliminary definition of “Meaningful Use,” as presented to the HIT Policy Committee on June 16, 2009.  Comments on the draft description of Meaningful Use are due by    5:00 pm EST June 26, 2009.  Below are links to the HIT Policy Committee's recomendations:

• Meaningful Use Preamble
• Meaningful Use Matrix

For directions on how to submit comments, visit the HIT Policy Committee's website.

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The HIT Policy Committee is suppose to unveil its recommendations on the definition of "Meaningful Use" of electronic health records (EHRs) on June 16th, reports Health Data Management.  Any approved definition of "Meaningful Use" would then be forwarded to the Office of National Coordinator for further consideration.  

What will constitute "Meaningful Use" of an EHR has been the subject of much debate and speculation lately because it is a necessary condition that hospitals and physicians must meet in order to qualify for Medicare and Medicaid incentive payments under the American Recovery and Reinvestment Act (ARRA).  ARRA initially describes “Meaningful Use” to include:

• The use of a certified EHR with ePrescribing capability;
• The ability to report on clinical quality measures; and  
• The use of EHR technology that allows electronic exchange of patient health information.

Further information with regard to required standards, reporting and connectivity levels are to be determined by the Secretary of Health and Human Services, and the Final Rule on the initial definition of "Meaningful Use" is due out by the end of 2009, so stay tuned....


 

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