Articles Posted in EHR

By: Brian Field


With the ever-changing climate of technology, the Health Insurance Portability and Accountability Act (HIPAA) continues to make patient-centered modifications intended to protect personal health records. Key components to the most recent updates to HIPAA include prohibition of records withholding.

The inspiration for the recent changes come from the Office of Civil Rights (OCR) within the U.S. Department of Health and Human Services (HHS).  A goal of both entities is to protect the health of all Americans and ensure essential human services. The OCR continues to reinforce a focus on patients regarding health and health records by aiming to eliminate technical barriers and reducing or eliminating cost to patients.

Following HIPAA law changes can be daunting, but if there is one thing to keep in mind, it is that HIPAA prioritizes patients. The information below is a snapshot of what you should know as you navigate health records storage for your patients before, during, and after their care with you has ended:

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device-digital-pen-6336-e1540845862509A sign of the times in the evolution of modern healthcare practice is the prevalence of the electronic health record (EHR).  In the past fifty years, technological advances and payer incentives have resulted in a sea of change in healthcare documentation, causing healthcare providers to shift from the historic practice of using paper records to using electronic health records.  Healthcare providers navigating the transition from paper to electronic records have encountered many challenges in learning and mastering the efficient and accurate use of EHRs.  One challenge with significant and potentially life-or-death consequences to patient health is ensuring that EHRs contain accurate information.

Georgia Business and Healthcare Law Firm

According to a recent report from Becker’s Healthcare, EHR-related medical malpractice claims have tripled since 2010.  Although EHR-related deficiencies are not typically the main reason for medical malpractice claims, they are a significant factor identified as contributing to medical injuries in a growing number of cases.  The Becker’s article cites a study by Doctor Company, which indicated that on average in 2010, only seven medical malpractice cases assessed identified EHR errors as a contributing cause to claims; that number rose to an average of 22.5 cases per year in 2017 and 2018.

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data-storage-1-1155466-m.jpgAn unencrypted thumb drive cost a dermatology practice $150,000. On December 26, 2013, the U.S. Department of Health & Human Services (HHS) announced a settlement with Adult & Pediatric Dermatology, P.C. of Concord, Massachusetts (APD) of alleged violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). APD, a “covered entity” for HIPAA purposes, has offices in Concord, Westford, Marlborough, and Ayer, Massachusetts, and Wolfeboro, New Hampshire.

The thumb drive contained unsecured electronic protected health information (ePHI) relating to the performance of Mohs surgery for about 2,200 patients. The thumb drive was stolen from the vehicle of one of APD’s employees. APD informed its patients of the theft of the thumb drive and provided a media notice.

HHS investigated and determined that APD did not timely conduct an accurate and thorough analysis of the risks associated with potential exposure of the ePHI. HHS also determined that APD did not fully comply with the administrative requirements of HIPAA’s breach notification requirements to have written policies and procedures and train employees regarding breach notification requirements. HHS also determined that APD disclosed ePHI in violation of HIPAA by the access gained to it when APD did not reasonable safeguard an unencrypted thumb drive.

HHS fined APD $150,000 and required APD’s execution of a Corrective Action Plan. The Corrective Action Plan requires APD to develop a comprehensive risk analysis and risk management plan to ensure future compliance with HIPAA and to periodically report to HHS the status of APD’s implementation of the plan. HHS released its right to take further action against APD, conditioned upon full compliance by APD with the Corrective Action Plan. See HHS Resolution Agreement.
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52967_filing_cabinets.jpgThe “EHR Improvements Act,” a bill (HR 1309) recently introduced by Rep. Diane Black (R-TN), would, if passed, mean that doctors close to retirement age might not incur Medicare payment cuts as a result of failing to implement an electronic health record (EHRs) system. Additionally, the bill would make solo practitioners exempt from the penalty for three years.

The issue addressed by the bill derives from the 2009 federal economic stimulus package. The American Recovery and Reinvestment Act of 2009 included new funding for health information technology. That funding included $17 billion to support incentives for doctors who adopt EHRs and can demonstrate they are using “certified” EHR in a “meaningful” way. The Medicare EHR incentive program was intended to incentivize health care providers to implement “meaningful use” of EHRs. The program, which began January 3, 2011, affords health care providers a way to receive up to $44,000 over five years in incentive payments. On the other hand, doctors who fail to meet meaningful use requirements will incur a penalty by way of a 1% reduction in Medicare reimbursement, per year, up to a maximum penalty of 5%. This penalty would create a substantial hardship for many physicians, particularly in small practices. The EHR Improvements act is apparently designed to mitigate that hardship.

According to the National Center for Health Statistics (NCHS) at the Centers for Disease Control and Prevention, data shows that older and solo physicians are lagging behind in EHRs adoption. According to NCHS’s research, about 50% of of physicians age 50 and older have adopted EHRs; about 64% of doctors younger than 50 have used EHRs. NCHS’s research also shows that 29% of solo practitioners had adopted EHRs by 2011, whereas 60% of two-doctor practices had implemented EHRs; the EHR adoption rate climbs to 86% for practices with at least 11 doctors. One of the principal reasons for this outcome appears to be simple cost-benefit analysis: switching to EHRs is enormously expensive for most practices, so much so that the financial incentives for implementing EHRs (including the penalty for not adopting EHRs) do not offset the cost of converting to EHRs.
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