Fast Times at HealthIT High

Health information technology or HealthIT is in the healthcare spotlight, but remains a constantly changing field.  One of the primary initiatives shining the brightest spotlight on HealthIt is the Meaningful Use program.  At this point, many know that Meaningful Use provides federal incentive money for eligible hospitals and eligible professionals to adopt and implement electronic health records (“EHR”) with the promise of funding if certain core objectives can be met in conjunction with use of the EHR.

While Meaningful Use has clearly driven a widespread adoption of EHRs by hospitals, physician groups and others in the healthcare industry, there is just as much commentary as to the effectiveness of the EHRs, the actual benefit of the core objectives required to meet Meaningful Use and other issues.  While the debate as to the worthiness of the Meaningful Use program is unlikely to end soon, a couple of recent announcements and proposals from the federal government will impact both Meaningful Use and HealthIT generally.

First, the Office of the National Coordinator of Health Information Technology (“ONC”), responding to a congressional mandate, released its Report on Health Information Blocking on April 10th (the “Blocking Report”).  The Blocking Report examines activities allegedly preventing or inhibiting the ope sharing of data between different EHR systems and among providers.  The Blocking Report defines information blocking when persons or entities knowingly and unreasonably or interfere with the exchange or use of electronic health information.  For the most part the Blocking Report relies upon anecdotal evidence of blocking.  It is specifically acknowledged within the Blocking Report that reports describing information blocking are mostly anecdotal.  Notwithstanding this empirical shortcoming, there is a still a fair amount of evidence suggesting that information blocking occurs.

As described in the Blocking Report, information blocking can occur in a number of different ways.  From the vendor side, blocking can occur because EHR developers impose cost prohibitive fees or include contractual language that limits or prevents the easy sharing of information.  Additionally, providers can also throw up barriers to information sharing, mistakenly believing that the Health Insurance Portability and Accountability Act (“HIPAA”) prevents information sharing.

Regardless of the cause, information sharing is clearly an issue in the HealthIT realm.  A large part of the promise of and reason behind pushing adoption of EHRs was the ability to maintain health information in an easily updatable format and to share with ease.  To date, the promise has not necessarily lived up to the reality.

From my perspective, I am interested and not too surprised that HIPAA is perceived as a barrier to the required information sharing.  That may be the result of misunderstandings about the scope of HIPAA though.  For example, the ONC recounted stories that some providers would not share medical information for treatment purposes.  Such misapplications of HIPAA demonstrate a fundamental problem.  Despite being around since 1996 in its original form, many still do not understand what HIPAA covers or what it is intended to do.  While it is indisputable that HIPAA can make things more challenging at times, it is also not meant to prevent collaboration between providers or be used as a card to deny individuals access to their medical information.  More education is needed, and fast, to remove HIPAA at least as a barrier to information sharing.

Second, advance notice of a proposed rule from the Centers for Medicaid and Medicare Services was also released on April 10, 2015 that would implement changes to Stage 1 and Stage 2 of the Meaningful Use program.  The goals of the proposed rule are to reflect the intended streamlining and simplification that was a goal of the recently proposed Stage 3 rule.  The key elements from the proposed rule are to: (i) reduce the reporting period in 2015 to 90 days, (ii) reduce the number of overall objectives, (iii) remove measures that are now redundant, duplicative or have reached widespread adoption, and (iv) realign the measurement period to a calendar year as opposed to a fiscal year.

The recent announcements show a new focus on the practical side of HealthIT adoption.  No longer are measures solely idealistic projections, but are more grounded in reality.  This may be a direct response from the number of complaints raised by HealthIT professionals and providers.  More modest expectations may enable the healthcare industry to mold EHRs and other HealthIT solutions into a more workable format.

As indicated above, it was beneficial to push the healthcare industry into adopting newer technology.  Setting requirements and expectations closer to what can actually occur in a realistic period of time will help all parties to push development where it needs to go.  A common complaint is that EHRs hinder a provider’s workflow.  EHRs and HealthIT should be part of a solution, not the cause of headaches.  Now that fairly widespread adoption has occurred, the question is whether existing programs such as Meaningful Use will permit necessary innovations and other changes, or if such programs are constraining growth and development within HealthIT.

The current time and upcoming future are pivotal periods for HealthIT and the healthcare industry generally.  Change and development are needed and everyone must be given the freedom to develop and grow solutions that meet actual needs.

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About Matt Fisher

Matt is the chair of Mirick O'Connell's Health Law Group and a partner in the firm's Business Group. Matt focuses his practice on health law and all areas of corporate transactions. Matt's health law practice includes advising clients with regulatory, fraud, abuse, and compliance issues. With regard to regulatory matters, Matt advises clients to ensure that contracts, agreements and other business arrangements meet both federal and state statutory and regulatory requirements. Matt's regulatory advice focuses on complying with requirements of the Stark Law, Anti-Kickback Statute, fraud and abuse regulations, licensing requirements and HIPAA. Matt also advises clients on compliance policies to develop appropriate monitoring and oversight of operations.
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