Electronic Health Records and Privacy Law

Eric A. Klein and Christine C. Cohn write in The National Law Journal:

President Obama has declared that electronic medical records will “reduce error rates, reduce our long-term cost of health care and create jobs.” (“Obama’s Prime Time Press Briefing,” The New York Times, Feb. 9, 2009.) Congress has authorized $19 billion to implement provisions of the American Reinvestment and Recovery Act of 2009 intended to accelerate the adoption and use of “certified electronic health record technology” during the next several years by hospitals and physicians that provide services to Medicare and Medicaid beneficiaries. (H.R. 1, 111th Cong. §§ 4001-4201 (2009).) Professionals and hospitals that fail to implement EHR technology by 2014 stand to suffer reductions in Medicare reimbursements.

The goal of this campaign is to adopt EHR technology to replace the current paper and fragmented computer files maintained by the vast majority of hospitals and physicians. Imagine a health information technology system that includes all of a patient’s diagnoses, medical history, laboratory and test results, medications prescribed, payor claims data, hospital records and other pertinent data. That system would be available to a patient’s health plan, hospital, pharmacy and doctors. Payors and regulators also can use this type of system to reduce fraud, waste and duplication, as well as control processing costs and improve disease-state management programs. EHR technology promises to reduce medication and other medical errors and streamline clinical decision-making and communication.

That “holy grail” has been envisioned by many participants in the health care industry today, but unfortunately it is not achievable under the current patchwork of federal and state laws and most existing health IT systems. In its ambitious effort to hasten the advent of EHR for the 21st century, the federal government actually may be working at cross-purposes with privacy protections established under federal and state law. Here’s why.

Read the full article on Law.com.