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Government Walks Fine Line on HIT Regulation

 |  By smace@healthleadersmedia.com  
   October 16, 2012

As the election nears, I'm not surprised to see the shortcomings of today's electronic medical records being used as yet another political football. But could it be true that the federal government isn't regulating EMRs enough?

According to an October 4 letter from four House Republicans to Health and Human Services Secretary Kathleen Sebelius, the just-published Meaningful Use Stage 2 regulations are "in some respects, weaker" than Stage 1 regulations. They called for immediate suspension of distribution of EHR incentive payments.

(Note of clarification: The regulations just published include a set of updated Stage 1 regulations that will also take effect in 2014, as the Stage 2 regulations will.)

As an example, the letter says that e-prescribing and medication reconciliation compliance thresholds fell from 75% and 80%, respectively, in the proposed rule to 50% in the final rule.

But the main body of the letter then charges that the Stage 2 rules "fail to achieve comprehensive interoperability in a timely manner, leaving our healthcare system trapped in information silos, much like it was before the incentive payments."

In response, HIMSS counters that "significant progress" has been made in EHR adoption because of the incentives, and rejects the call for suspension of payments.

Now to be sure, there is some disturbing evidence that EHR adoption is actually causing increasing costs to Medicare. A recent New York Times investigation just validates concerns that this system could be gamed by unscrupulous providers, just as earlier government programs were able to be gamed.

But Farzad Mostashari, MD, national coordinator for health information technology at HHS, has demonstrated the diminishing returns of heavy-handed government meddling on solving our healthcare IT problems. Mostashari is fond of describing government regulation of healthcare as a "blunt instrument."

During an ONC town hall meeting at last week's Health 2.0 conference in San Francisco, the president of a software company complained that EHRs that certify their parts only as a complete suite of products, rather than module by module, were freezing out best-of-breed solutions from the marketplace. Mostashari acknowledged that particularly in ambulatory settings, this kind of market abuse is occurring.

That speaker was followed by another who noted that EHR companies are charging transcription companies between $5,000 and $10,000 to get their transcribed information into those EHRs.

"The intent is that information follows the patient, and that there are not market abuses in terms of companies taking their business position in one area and using it to create unfair policies," Mostashari responded.

In defense of the current regulations, Mostashari noted that vendors are at least required to reveal these charges. He also said that HHS' Regional Extension Centers are able to argue "on behalf of a thousand small practices instead of having the small practices go up against the vendor one by one."

But ultimately, Mostashari had little comfort to give small practices looking for best-of-breed, and to the small companies providing that best-of-breed software or service.

 

"Am I aware that some vendors already built the interface five times, [and] they charged $10,000 to the lab or to somebody else for the next interface?" Mostashari said. "Yes. I'm aware of that. Is there an easy regulatory action that we could take without getting into every contract that everybody signed with everybody else? I don't see it."

Mostashari offered to sit with the questioner afterwards and go through what it actually would take to regulate every contract between every EHR vendor and every other party in the environment, and how difficult it would be to do that and avoid unintended consequences.

So if you're wondering whether the problem with healthcare IT is too little regulation, I suggest you heed Dr. Mostashari, who seems to have a keen grasp on how much regulation is too much.

Far better for Congress to turn its eye to some of the big vendors themselves, who apparently abuse this system and regulatory environment to line their pockets. They know who they are.

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Scott Mace is the former senior technology editor for HealthLeaders Media. He is now the senior editor, custom content at H3.Group.

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