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EHRS, EMRS, AND HEALTH INFORMATION TECHNOLOGY: TO MEANINGFUL USE AND BEYOND A SYMPOSIUM INTRODUCTION AND OVERVIEW

Ross D. Silverman, J.D., M.P.H.*

INTRODUCTION

In 2000 and 2001, the Institute of Medicine (IOM) Committee on Quality of Health Care in America released two landmark1 reports, To Err Is Human,2

examining health care safety, and Crossing the Quality Chasm: A New Health System for the 21st Century,3 which investigated health care quality and the effects of our system on “the health, functioning, dignity, comfort, satisfaction, and resources of Americans.”4 With these reports, the IOM pulled back the curtain on our health care system, laying bare for all to see the myriad physical and moral harms occurring as a result of the structure and execution of the United States health care delivery system. These reports, which helped foster a revolution in the way that the safety and quality of health care is measured and perceived by those who offer and receive health services in the United

* Professor and Chair, Department of Medical Humanities, and Professor of Psychiatry, Southern Illinois University School of Medicine; Professor of Medical Jurisprudence, Southern Illinois University School of Law. Address correspondence to Professor Silverman at Department of Medical Humanities, Southern Illinois University School of Medicine, 913 N. Rutledge Street, Room 1116, P.O. Box 19603, Springfield, Illinois, 62794-9603 or via e-mail at [email protected].

1 Institute of Medicine, Which IOM Report Has Had the Greatest Impact?, INSTITUTE OF MEDICINE (Nov. 7, 2012, 10:04 AM), http://www.iom.edu/Global/Media%20Room/Reports-Impact-Poll.aspx (an IOM online poll in which To Err Is Human and Crossing the Quality Chasm came, respectively, in third and fourth).

2 TO ERR IS HUMAN: BUILDING A SAFER HEALTH SYSTEM (Linda T. Kohn, Janet M. Corrigan, and Molla S. Donaldson, eds., 2000).

3 INSTITUTE OF MEDICINE, CROSSING THE QUALITY CHASM: A NEW HEALTH SYSTEM FOR THE 21ST CENTURY (2001).

4 Id. at 2.

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States, called for a commitment to the delivery of high-quality care that is “safe, effective, patient-centered, timely, efficient, and equitable.”5

One factor the IOM felt was leading us to fall short of such aims was our relative lack of integration of Information Technology into how our health care systems deliver and assess services. According to the Institute of Medicine, the adoption and meaningful use of Health Information Technology (HIT) would play a “critical role”6 in our making gains in all six aims for a 21st-century health care system.7

A central component of using HIT is the development and adoption of Electronic Health Records (EHR) systems. According to the IOM, widespread use of effective EHRs would be key to improving health care delivery in inpatient, outpatient, and community settings and, through the development of personal health records, would facilitate patient-centered care.8 According to the IOM, EHRs would need to be structured to facilitate many different users:

EHR systems must support the delivery of personal health care services, including care delivery (e.g., care processes), care management, care support processes, and administrative processes (e.g., billing and reimbursement). As individuals engage more actively in management of their own health, they too become important users of electronic health information. There are also important secondary uses, including education, regulation (e.g., credentialing), clinical and health services research, pub- lic health and homeland security, and policy support. There are both individual users (e.g., patients, clinicians, managers) and institutional users (e.g., hospitals, public health departments, accreditation organizations, educators, and research entities).9

Health care, government, and technology are probably our largest pro- ducers of acronyms. Therefore, it should come as no surprise that, over the past decade, the above definition of what an EHR might be used for has evolved and split into two separate acronyms, to further differentiate between the dig- itized systems used by care providers primarily for diagnosis and treatment— now known as Electronic Medical Records (EMR)—and the broader term EHR, which includes EMR information but “reach[es] out beyond the health organization that originally collects and compiles the information” to “focus on the total health of the patient.”10 Thanks to cellphone apps and the like, EHR can include preventive care, nursing home care, collaboration between

5 Id. at 25.

6 Id. at 164.

7 Id. at 164–65.

8 INSTITUTE OF MEDICINE, KEY CAPABILITIES OF AN ELECTRONIC HEALTH RECORD SYSTEM 5 (2003).

9 Id.

10 Office of the National Coordinator for Health Information Technology, Department of Health and Human Services, EMR vs. EHR—What Is the Difference? HEALTHITBUZZ (Jan. 4, 2011), http://www.healthit. gov/buzz-blog/electronic-health-and-medical-records/emr-vs-ehr-difference/.

EHRS, EMRS, & HIT: SYMPOSIUM INTRODUCTION 3

clinicians in different health care organizations, and efforts that bring us closer to the “quantified self,”11 among other options. Importantly, EHR systems also offer promise for increasing health care equity, improving quality of care for underserved populations,12 and reducing health disparities.13

Adoption and use of EHR has exploded in recent years. According to the Centers for Disease Control and Prevention, as of 2012, nearly 3 out of 4 office-based physicians used either EHR or EMR systems, up from 18% in 2001 and just 48% in 2009.14 This rapid acceleration is due to significant efforts undertaken by the federal government to encourage provider EHR system uptake, including the Department of Health and Human Services creation of a distinct office, the Office of the National Coordinator for Health Information Technology (ONC) and a user-friendly web site, healthit.gov, to facilitate EHR adoption. More important, in 2009, Congress passed the Health Information Technology for Economic and Clinical Health (HITECH) Act as part of the American Recovery and Reinvestment Act of 2009 (ARRA).15

This law authorized the creation of Medicare and Medicaid-related incentive payments to hospitals, critical access hospitals, and eligible professionals who can demonstrate their “meaningful use” of EHR systems.16 “Meaningful use” was defined in the HITECH Act as:

1. The use of a certified EHR in a meaningful manner (e.g.: e- Prescribing);

2. The use of certified EHR technology for electronic exchange of health information to improve quality of health care; and

11 The “Quantified Self,” as it pertains to HIT, is the use of electronic means such as apps on mo- bile phones, pedometers, and other gadgets to track and assess one’s daily activities such as ex- ercise, diet, and mood. See, e.g., QUANTIFIED SELF, http://quantifiedself.com/about/ (last visited Jan. 6, 2013), a Robert Wood Johnson Foundation–funded online collaboration. See also Lindsey Tan- ner, Your Medical Chart May Soon Log Exercise, Too, VITALS ON NBCNEWS.COM, http://vitals. nbcnews.com/ news/2013/01/06/16380818-your-medical-chart-may-soon-log-exercise-too (Jan. 6, 2013).

12 Jeffrey M. Weinfeld et al., Electronic Health Records Improve the Quality of Care in Underserved Populations: A Literature Review, 23 J. HEALTH CARE POOR & UNDERSERVED 136 (2012).

13 Michael Chris Gibbons & Cecilia Rivera Casale, Reducing Disparities in Health Care Quality: The Role of Health IT in Underresourced Settings, 67 MED. CARE RESEARCH & REV. 155S (Oct. 2010).

14 CHUN-JU HSIAO & ESTHER HING, NCHS DATA BRIEF NUMBER 111: USE AND CHARACTERISTICS OF ELECTRONIC HEALTH RECORD SYSTEMS AMONG OFFICE-BASED PHYSICIAN PRACTICES: UNITED STATES, 2001–2012 (Dec. 2012).

15 Pub. L. No. 111-5, 123 Stat. 115, at 467, 470 & 487 (2009). The HITECH Act appears as Division A, Title XIII, and Division B, Title IV of ARRA.

16 42 C.F.R. §§ 495.4, .6, .8 (2010). For details on these incentive programs, see Ctrs. for Medicare & Med- icaid Servs., EHR Incentive Program (Aug. 27, 2012), http://www.cms.gov/Regulations-and-Guidance/ Legislation/EHRIncentivePrograms/index.html.

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3. The use of certified EHR technology to submit clinical quality and other measures.17

To facilitate EHR adoption, the Department of Health and Human Ser- vices is rolling out its Meaningful Use regulations in three stages of escalating sophistication,18 with Stage 1 standards19 going into effect in 2010, Stage 220

in 2014, and Stage 3 in 2016. Payments for eligible providers began in 2011, and ONC and the Centers for Medicare and Medicaid Services have de- veloped resources and online guides providing step-by-step aid with EHR adoption.21

2012 HEALTH POLICY INSTITUTE

What effect will these meaningful use standards have on health care quality, safety, efficiency and access? How will the privacy, security, and pa- tient control22 of health care information be affected by widespread adoption and meaningful use of EHR systems? What are the ethical and legal best practices, and what lessons have been learned so far, in the adoption of EHR systems by health care providers? These questions and more were discussed by invited panelists and attendees at the Fourteenth Annual Southern Illinois Healthcare/Southern Illinois University Health Policy Institute, which had the theme of “EHRs, EMRs, and Health Information Technology: To Meaningful Use and Beyond.” The Institute was held on May 18, 2012, at the Southern Illinois University School of Law in Carbondale, Illinois, and, thanks to mod- ern information technology, was simultaneously broadcast 180 miles north to an audience at the Southern Illinois University School of Medicine. The event was sponsored by Southern Illinois Healthcare; the Southern Illinois University School of Law—Center for Health Law and Policy; the Southern Illinois University School of Medicine Department of Medical Humanities;

17 CTRS. FOR MEDICARE & MEDICAID SERVS., ELECTRONIC HEALTH RECORD (EHR) INCENTIVE PROGRAM FAQs 4 (Oct. 2012), http://www.cms.gov/Regulations-and-Guidance/Legislation/EHRIncentivePrograms/ Downloads/FAQs Oct 2012.pdf.

18 Office of the National Coordinator for Health Information Technology, Department of Health and Human Services, What Is Meaningful Use?, http://www.healthit.gov/policy-researchers-implementers/ meaningful-use.

19 Electronic Health Record Incentive Program (Stage 1), 75 Fed. Reg. 44314 (July 28, 2010) (to be codified at 42 C.F.R. pts. 412, 413, 422, and 495).

20 Electronic Health Record Incentive Program—Stage 2, 77 Fed. Reg. 53968 (Sept. 4, 2012) (to be codified at 42 C.F.R. pts. 412, 413, and 495).

21 See, e.g., Office of the National Coordinator for Health Information Technology, Department of Health and Human Services, How to Implement EHRs, http://www.healthit.gov/providers-professionals/ ehr-implementation-steps.

22 See, e.g., Dave deBronkart, Meet e-Patient Dave, TED.COM (June 2011), http://www.ted.com/talks/ dave debronkart meet e patient dave.html.

EHRS, EMRS, & HIT: SYMPOSIUM INTRODUCTION 5

the Southern Illinois University Paul Simon Public Policy Institute; and the law firm of Sandberg, Phoenix & von Gontard P.C.

Papers of two of the invited speakers appear in this symposium issue of the Journal of Legal Medicine, as well as one additional article by a team of authors.

The first piece is by Nicholas P. Terry, the Hall Render Professor of Law and Co-Director of the Hall Center for Law and Health at Indiana University Robert H. McKinney School of Law: Meaningful Adoption: What We Know or Think We Know About the Financing, Effectiveness, Quality, and Safety of Electronic Medical Records.23 In his article, Terry questions the common wisdom concerning aggressive EMR implementation and offers an adroit crit- ical analysis of the many market failures littering EMR’s history and present. By differentiating between the marketing catchphrase “Meaningful Use” and truly meaningful adoption of EMRs by health systems and physicians, Terry expresses concern over whether current EMR systems are adequately techno- logically evolved and scalable to bring about major safety and quality gains for both big and smaller care provider systems. This raises questions not only about whether it is wise for the federal government to push so hard for uni- versal Meaningful Use of EMRs, but also if these initiatives are even pushing providers toward the proper goals.

The second article, Meaningful EHR Attributes for an Era of Account- ability, Transparency, Shared Decision Making, and Value Assessment, is by Dr. David Liebovitz, Associate Professor in Medicine-General Internal Medicine and Geriatrics and Preventive Medicine-Health and Biomedical In- formatics at Northwestern University Feinberg School of Medicine.24 While supportive of EHR adoption, Liebovitz’s analysis finds frequent, significant gaps between what has been promised and delivered thus far through EHR adoption. This is often due to health care safety and quality goals being sub- sumed to EHR useability concerns. Through vivid case examples, he helps the reader see the complex competing concerns faced by health systems when adopting EHR systems that have contributed to the divide between how many EHR systems are structured today, and where patients, physicians, and policy- makers want them to be to serve as a means through which truly transparent, patient-centered, high-quality care can be delivered.

These two articles from the Health Policy Institute are joined by a third piece, Interoperable Electronic Health Care Record: A Case for Adoption of a National Standard to Stem the Ongoing Health Care Crisis by Deth Sao,

23 Nicholas P. Terry, Meaningful Adoption: What We Know or Think We Know About the Financing, Effectiveness, Quality, and Safety of Electronic Medical Records, 34 J. LEGAL MED. 7 (2013).

24 David Liebovitz, Meaningful EHR Attributes for an Era of Accountability, Transparency, Shared Deci- sion Making, and Value Assessment, 34 J. LEGAL MED. 43 (2013).

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Amar Gupta, and David A. Gantz.25 Like the authors of the other pieces ap- pearing in this issue, Sao, Gupta and Gantz are supporters of EHR initiatives, and like the other authors, they are troubled that current achievements have fallen short of the lofty goals envisioned with their widespread adoption and use. Unlike the other authors, however, Sao suggests that the problem may be less one of calibration toward proper goals and timelines. Instead, effective policies related to EHR adoption in the United States may suffer most from their overreliance on using carrots rather than sticks. The authors offer an approach through which the federal government feasibly could develop a na- tional EHR infrastructure through mandating and enforcing uniform technical interoperability standards.

CONCLUSION

When reading these articles, I cannot help but be reminded of Robert Frost’s poem, The Lesson for Today:

I hold your doctrine of Memento Mori. And were an epitaph to be my story I’d have a short one ready for my own. I would have written of me on my stone: I had a lover’s quarrel with the world.26

It is clear that the authors of all three of these pieces, as well as all of the speakers at the Health Policy Institute, are passionate about the promise EHR holds for improving the quality, safety, and equity of health care in the United States. However, as these authors point out, the Health Information Technology course on which we have collectively traveled thus far may have been more bumpy road through the woods than superhighway. Their works offer invaluable guidance to policymakers, providers, and patients alike for how we can steer more surely toward a national health system buttressed by an integrated HIT infrastructure that provides safe, effective, patient-centered, timely, efficient, and equitable health care.

25 Deth Sao, Amar Gupta & David A. Gantz, Interoperable Electronic Health Care Record: A Case for Adoption of a National Standard to Stem the Ongoing Health Care Crisis, 34 J. LEGAL MED. 55 (2013).

26 Robert Frost, The Lesson for Today, in THE POEMS OF ROBERT FROST 403, 408 (1946).

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