Academic journal article Harvard Journal of Law & Technology

Using the Law to Correct the Market: The Electronic Health Record (EHR) Incentives Program

Academic journal article Harvard Journal of Law & Technology

Using the Law to Correct the Market: The Electronic Health Record (EHR) Incentives Program

Article excerpt

TABLE OF CONTENTS  I. INTRODUCTION II. THE LAW AND THE REGULATION OF EHRS   A. The HITECH Act   B. Meaningful Use Regulations   C. Certification Regulations III. THE REGULATORS' PERSPECTIVE   A. Why They Chose Their Approach   B. Current Perspective IV. THE RESULTS OF LEGAL INTERVENTION   A. Adoption Rates for EHR   B. Return on Investment      1. Cost of Implementing EHRs      2. Improvement of Health Care Quality   C. Physician Reaction   D. Missing Interoperability V. THE FUTURE OF LEGAL INTERVENTION   A. The Next Phase of Meaningful Use   B. Flaws in the Regulatory Approach      1. Data Quality      2. Physician Reaction      3. Markets and Vendor Power   C. Limits to a Regulatory Approach   D. Recommendations for Improvement      1. Focus on Quality over Specific Performance      2. Rewrite Certification Criteria to Favor Performance         over Features VI. CONCLUSION 


Technology is ubiquitous for managing information throughout the modern economy. It has improved efficiency and the sharing of information for many industries, and much of technology scholarship now focuses on how best to manage this newfound ability. Despite this general trend, one industry has remained entrenched against the use of technology for years: health care.

Information is at the center of the health care industry, which must coordinate patient care between physicians, hospitals, pharmacies, and a host of other providers and related services. Despite the need for better coordination of information, the industry continues to use paper records with few exceptions. (1) Vendors have entered the health care market offering systems of electronic health records ("EHRs") to facilitate storing and sharing information, but several factors deterred providers from adopting these systems. (2)

Finding that the lack of EHRs to be a failure of the market, the federal government enacted law to force the conversion to technology. (3) 4 This law, called the Health Information Technology for Economic and Clinical Health (HITECH) Act, was passed in 2009 and has since been implemented. (4) The industry has received the resulting regulations with skepticism, and the literature on health information technology ("IT") disputes whether government interference in the health industry is truly worth the burdens it has imposed. (5)

This note proposes that while EHRs offer some of the benefits that proponents hoped for, the law unintentionally increased administrative burdens of transitioning and imposed unnecessary costs. Part II examines the components of the regulations, including the meaningful use requirement, the certification program, and the changes to both as the regulations have developed. Part III surveys the current data available on the results of the incentives program. Part IV examines the policy rationale that regulators have used in designing regulation. Part V reviews the proposed changes for the next phase of the regulation, analyzes and evaluates the policy rationale behind the regulation, and makes recommendations for future improvement. Part VI concludes, proposing that regulators could achieve greater benefits by placing more emphasis on quality outcomes from the use of EHRs and less emphasis on prescribing specific acts.

II. The Law and the Regulation of EHRs


The law shifting the health care industry to adopt EHRs, the HITECH Act, was part of the American Recovery and Reinvestment Act of 2009. (6) This act has three main functions. First, it officially recognizes the Office of the National Coordinator for Health Information Technology ("ONC"), which President George W. Bush created by executive order in 2004. (7) Second, it creates several programs for developing health IT infrastructure, including incentivizing the purchase of certain EHRs by Medicare and Medicaid providers. (8) Finally, it strengthens the privacy and security requirements in the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). …

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