The Affordable Care Act and Electronic Health Care Records

72 PEJ NOVEMBER•DECEMBER/2013

The Affordable Care Act

and Electronic Health Care Records

Does today's technology support the vision of a paperless health care system?

Health Law

Sarah Freymann Fontenot, BSN, JD,

is the health

law professor for Trinity University (San Antonio)

MHA Program in the Department of Health Care

Administration and has been a member of the ACPE

faculty since 2006.

The Affordable Care Act (ACA) promotes the con-

tinuing development of electronic health records (EHRs)

to decrease costs and improve the quality of health care.

Unlike other aspects of the ACA that we have previously

reviewed, support for health information technology (HIT)

is not contained in one specific section of the law. Rather,

it is a necessary and sufficient condition for many of the

ACA's initiatives.

On the cost reduction side, for example, increased

access to digital records will decrease costs, duplication

and claim processing time by allowing multiple provid-

ers to rely upon one laboratory finding; by facilitating

data mining to detect fraudulent billing practices; and by

advancing per capita comparisons between communities

with similar patients but disparate utilization rates.

The evidence that EHRs will be essential and effec-

tive in enabling the improvement of health care quality is

neither conclusive nor straightforward. Many people in

the medical community doubt whether digital information

benefits the quality of care at all.

To begin, it is important to note that EHRs predate the

ACA by decades. In 2001, the Institute of Medicine (IOM)

described the significance of digitalizing health care:

The committee believes IT must play a central role

in the redesign of the health care system if a substantial

improvement in health care quality is to be achieved during

the coming decade.

In the 1990s, the country was rapidly recognizing

the possibilities for computers and digital information

throughout society; the share of households with Internet

access increased 58 percent between December 1998 and

August 2000.

With communication, news, research and shopping cov-

ered, health care was the obvious next sector for implement-

ing information technology. That transition, as we now know,

proved to be cumbersome. As medicine involved thousands

of individual businesses, a centralized, efficient acquisition

process (such as was witnessed by the monolithic Veterans

Administration system) clearly would not be possible.

For the majority of physicians — who practiced in solo

or very small group practices — the cost would be prohibi-

tive. Furthermore, the ensuing chaos of vendors vying

to outsell one another and meet the demand for in-office

technology resulted in software programs that literally did

not talk to one another.

Privacy matters

Perhaps most significantly, privacy concerns — rep-

resented by 50 state laws addressing patient confidential-

ity and the Privacy Act of 1974 — were compounded by

the HIPAA Privacy Rule (effective April 14, 2003) and only

furthered the idea that HIT was a distant dream. Yet the

vision of a "paperless health care system" has not been lost

through decades of difficulties and recalcitrant adopters.

Even the most casual analyses of multiple private and pub-

lic initiatives over the years, including the ACA, would find

frequent mentions of this distant utopia.

To understand the resiliency of this yearning for

technology to create a healthier country, we must briefly

review the original intention for medical records.

In the fifth century B.C., medical reporting was highly

influenced by Hippocrates. He advocated that the medi-

cal record serve two goals: it should accurately reflect the

course of disease, and it should indicate the possible causes

of disease.

Patient records date back to ancient civilization.

Traditionally, the record was for the benefit of the physi-

cian; in its purest form, the record told the medical story

of a patient, enabling the doctor to remember details that

would otherwise be lost to memory. As specialization

diversified health care, so too did the need for records in

order to facilitate cohesive care.

ACPE.ORG 73

Various practitioners involved

in one patient's treatment needed to

communicate their findings, thoughts

and interventions to one another. It

became increasingly important for an

organized chart to be shared among

parties involved in a patient’s care

as institutional providers, such as

hospitals and skilled nursing facili-

ties, developed in the 19th and 20th

centuries. Although these records

served the necessity of patient care,

they also aided in the transforma-

tion of medicine to the science that

Hippocrates envisioned.

Medical records took on entirely

new functions in the latter part of

the 20th century. As the country

became more litigious, a patient's

record became the focal point of a

plaintiff's claim that the physician

failed to meet the standard of care, or

conversely, key evidence for the phy-

sician's decision-making process.

The dreaded axiom, "If it wasn't

documented, it didn't happen," refers

to the patient's chart. With the devel-

opment of private insurance and the

advent of Medicare and Medicaid,

billing and charting became intimate-

ly connected. In more recent decades,

the record became an integral part of

the investigation and prosecution of

fraudulent billing practices.

Finally, medical review boards

have become increasingly interested

in records as a means to police the

quality of care that licensed practi-

tioners provide. Hippocrates' simple,

private reminder system for indi-

vidual physicians had, by the 1990s,

gained significant legal and regula-

tory implications.

As information technology

advanced, it became more unreason-

able to maintain important informa-

tion on the inherently fragile and pre-

carious medium of paper. The risk was

underscored dramatically in the devas-

tation wrought by Hurricane Katrina.

In a matter of hours, 400,000

medical records were reduced to pulp

[at the] Medical Center of Louisiana

Cost and difficulties encountered with significant change are

certainly part of the pushback from many physicians who

refuse or regret the transition to EHRs, and many do not relish

the transparency that allows for remote data mining and

review by licensing and enforcement authorities.

74 PEJ NOVEMBER•DECEMBER/2013

patient's entire transition through life

and treatment becomes available far

beyond that patient and their encoun-

ters with the health care system. With

proper protections of identifying infor-

mation, astounding volumes of data are

available for significant study of the

most nettlesome chronic diseases.

“Comparative effectiveness”

becomes a reality, as thousands upon

thousands of similar cases can be

easily, scientifically compared. The

possibility of actually curing the com-

mon cold is far more significant than

making an old idiom obsolete. Public

health agencies have the potential to

detect disease outbreaks long before

they occur, and science can modify

therapies to demographic changes in

real time.

Perhaps the most dramatic

extension of health care facilitated by

HIT is the expected explosion in tele-

health, where patients living in the

most remote and underserved regions

of our country can gain access to

primary care through a face-to-face

encounter with a practitioner who

may be thousands of miles away.

In light of those significant

opportunities and advancements for

the overall quality of our nation's

health care, it might be difficult for

an outside observer to understand

why HIT is not enthusiastically

embraced by all sectors of the health

care system, particularly physicians.

The reason for that contradiction

lies in the day-to-day realities of

EHR technology for the people actu-

ally using them as part of delivering

patient care.

Dr. David J. Brailer [the first

national coordinator for health

information technology], said: “The

current information tools are still dif-

ficult to set up. They are hard to use.

They fit only parts of what doctors

do, and not the rest.”

Cost and difficulties encoun-

tered with significant change are

certainly part of the pushback from

many physicians who refuse or regret

more standardized patient care proto-

col for specific conditions or diseases.

Data mining of electronic records and

billing greatly assists enforcement of

fraud and abuse, as the investigator

can identify fraudulent practices with-

out ever crossing an office's threshold.

Similarly, licensing bodies have far

greater opportunities for scrutiny

through remote access to records that

may reveal quality of care issues for an

individual physician.

An online, patient portal best

exemplifies the boon of EHRs for

patients, for it grants secure, 24/7

access to an individual's personal

chart. No longer is there a need for a

signed release, waiting days or weeks,

or potential fees in order to get a paper

copy of a record. Now, patients who are

awake in the middle of the night can

peruse their own laboratory reports

and anxiously read between any (per-

ceived) lines in their physician's notes

from the day's office visit.

IT taking hold

For all of these reasons, EHR

adoption has begun to take hold

among physicians; this rate has accel-

erated significantly with the finan-

cial assistance offered through the

"meaningful use" program under the

the Health Information Technology

for Economic and Clinical Health

(HITECH) Act in 2009.

A recent survey found that about

70 percent of doctors now use elec-

tronic health records in some form,

which many experts see as a tipping

point.

As implementation of the ACA

brings transparency, population

research and telemedicine to new

levels, HIT will be integrally involved.

The potential of transparency

through EHRs is a seismic change

from paper charts.

Specific data about outcomes

can now be gleaned and shared from

the level of an individual physician

to a multi state health care organiza-

tion. With an electronic record, the

in New Orleans.... Every paper record

was destroyed.

Overnight thousands of

Louisiana residents lost their medi-

cal history forever, which was a blow

to their own health care and to their

future generations seeking genetic

information and accounts of family

health patterns.

Ironically, patients were actu-

ally quite late in recognizing the

significance of being able to retrieve

their own health information. Only in

the past few decades have state laws

gradually recognized a patient’s right

of access to their own records, though

to this day, many still dictate that a

medical chart is the personal prop-

erty of the provider who creates it.

The HIPAA Privacy Rule was the first

time that a uniform, federal right of

access to a patient's personal medical

record was established.

This brief history of medical

records reinforces the arguments for

EHRs as a quality-enhancing technol-

ogy. If the record serves as a remind-

er for the individual physician, HIT

allows that same physician to have a

documentation vehicle that can assist

him or her with their decision-making

through immediate interaction with

prescribing information, contraindi-

cation warnings and easier access to

the patient's past medical history.

The EHR may put an end to jokes

about doctors' handwriting, for a leg-

ible record has actual value for other

providers trying to understand the

context of their own treatment inter-

ventions. A remotely accessible chart

can quickly guide physicians and nurs-

es in urgent care facilities throughout

our increasingly transient population.

The integrity of patient information is

also protected, as digital information is

not likely to be lost through misfiling

or environmental forces.

Because medical malpractice is

ultimately a judgment upon whether

a standard of care has been met,

digitized data collection assists those

practitioners who want to establish a

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76 PEJ NOVEMBER•DECEMBER/2013

Physicians may be faulted for being

resistant to change, but there are legiti-

mate concerns in the medical commu-

nity. Counterproductive frustrations

inherent in current EHR technology

and the unintended consequence of

financially driven, overuse of templates

undermine the very record that was

supposed to advance the coordination

and integration of care.

Of the core functions of a medi-

cal record detailed earlier, arguably

the only one in which EHRs have

demonstrated benefits to date is

in the collection of large amounts

of demographic data that advances

medical science. Ironically, that is

the function of records envisioned by

Hippocrates in 400 B.C.

References

1. Committee on Quality of Health Care in

America, Institute of Medicine. Crossing

the quality chasm: A new health system for

the 21st century. National Academies Press:

2001, 147.

2. Musen MA, van Bemmel J. Handbook of

medical informatics. Houten: Springer.

1997.

3. Dimick C. A Long Recovery: HIM

Departments Three Years After Katrina.

Journal of AHIMA, 2008, 79(9):42-46.

4. Drevitch G. Will We Ever Have Universal

Electronic Health Records? Forbes,

2013. http://www.forbes.com/sites/

nextavenue/2013/05/01/will-we-ever-have-

universal-electronic-health-records/.

5. Freudenheim M. The Ups and Downs of

Electronic Medical Records. New York

Times, 2012, Oct. 8. http://www.nytimes.

com/2012/10/09/health/the-ups-and-

downs-of-electronic-medical-records-the-

digital-doctor.html.

6. Doroshow J. Cookbook Medicine Is a

Recipe for Disaster. Huffington Post,

2013. http://www.huffingtonpost.

com/joanne-doroshow/cookbook-

medicine_b_2792900.html.

but — in actual usage — they are a

vehicle allowing physicians and other

providers to create profuse notes on

every patient encounter.

The drive for excessive docu-

mentation is not zeal for document-

ing for the patient's benefit or the

advancement of medical science; it is

billing. Templates allow physicians

to increase their income as billing is

immediately connected to the activi-

ties that were charted. Moreover,

because the templates are digital and

not human, they produce identical

text for each use.

The enormous, unintended conse-

quence of EHRs is voluminous records

overflowing with irrelevant informa-

tion. The greatest concern about EHRs

is also their greatest irony: the digital

record that was supposed to increase

communication among parties involved

in a patient’s care has actually resulted

in millions of computer-generated

pages that no one reads.

Laws, policies and regulations

have attempted for decades to trans-

form the American health care sys-

tem by simultaneously preserving the

excellence of individual patient care,

improving the population's overall

health and decreasing costs. The ACA

brings all three motivations together.

This laudable goal is dependent,

in many ways, on the implementation

of a national, robust and integrated

electronic record system. All of the

data collection, analysis, efficien-

cies and enforcement mandated by

the ACA require global acceptance of

EHRs, yet adoption of EHRs still lags

behind while the law's date for full

implementation draws ever closer.

No one can make an intelligible

argument to return to our old system

of incomplete, inaccessible and eas-

ily destroyed paper patient records,

but the vision of a paperless health

care system is still a hazy future.

Proponents of the ACA can only hope

that technology designed to reform

does not instead impede those very

efforts.

the transition to EHRs, and many

do not relish the transparency that

allows for remote data mining and

review by licensing and enforcement

authorities. Physicians used to shield-

ing their patients' records from view

are uncomfortable with the prospect

of unlimited patient access through

online portals, and there are large

sectors of the medical community

that dismiss comparative effective-

ness as "cookbook medicine."

However, opposition to EHRs

generally does not stem from dis-

agreement over the vision of a

paperless health care system, rather

naysayers oppose the current idio-

syncrasies of EHRs. Users commonly

complain that EHRs take significantly

longer than paper charts to complete.

Familiarity takes some of the blame

here (anecdotally it has been reported

that it can take up to two years to

achieve fluency with EHR software),

however, the chief culprit is usually

the software code.

Computer experts may have cre-

ated a great vehicle with multiple lev-

els of security, but when the end user

has dozens of mouse clicks involved

in a simple entry, the level of irrita-

tion is understandable. Pop-up notic-

es and contraindication warnings are

numerous and often set at such a low

level that physicians are frequently

interrupted with unnecessary, extra-

neous information.

The net effect is similar to "alarm

fatigue" encountered in ICUs with

patients on respirators, when alarms

are turned off, or — even if activated

— are no longer heard by the nurses.

It is the medical equivalent of car

alarms in our broader society.

More than any technical issues,

physicians most vehemently complain

that EHRs are no better than those

who use them. The prevalence of tem-

plates allows everyone to document

far, far more than they ever did with

pen and ink. These templates can

increase both efficiency and the level

of documentation of patient care,