An Introduction to the HITECH Act of 2009

When you ask people what piece of legislation has brought the greatest change to our healthcare industry recently, people will overwhelmingly reply that it has to be Obamacare (PPACA). The media constantly talks about it and our elected officials use it for political fodder so it must be. Well, I believe that a much more disruptive piece of healthcare reform legislation occurred just before Obamacare (PPACA) was passed; namely, the little- known law called “The Health Information Technology for Economic and Clinical Health Act” (HITECH Act of 2009).

The HITECH Act of 2009 paved the way for the wide-spread adoption of shared electronic (digital) health records that are a necessary ingredient for improved quality of care.  

The HITECH Act of 2009 did not invent the concept of electronic (digital) health records. Before 2009, some private insurance companies offered bonus payments to medical practitioners who improved patient outcomes and information technology was ideal to monitor and communicate with patients. The structure of these pre-HITECH Act software programs were designed to meet the needs of the individual medical businesses and not for health record sharing.  In addition, the Veterans Health Administration has maintained a taxpayer-funded electronic healthcare record system (total called “MyHealtheVet” ) for veterans, since the 1980s.

The electronic (digital) health records created from this law improve the quality of care by

  • increasing patient engagement
  • improving coordination of care between healthcare provider
  • reducing in over-treatment and over-testing
  • improving public health

In 2009, it was estimated (Catherine M. DesRoches et al., “Electronic Health Records in Ambulatory Care—A National Survey of Physicians,” New England Journal of Medicine, 2008, vol. 359, no. 1, pp. 50-60) that less than 5% of medical providers had fully functioning electronic medical recordkeeping in place. Before 2009, health records were largely kept in filing cabinets and rarely left the healthcare business that created them (except to justify requests for payment). As shown in the figure below, “ownership” of the health records largely remained in healthcare providers’ hands and not in those of patients.

health records before HITECH Act of 2009In 1996, patients were formally given the right by law (Health Insurance Portability and Accountability Act (HIPAA)) to access THEIR own medical information. Before 2009, this right was usually exercised to get paper copies of health records from individual medical practitioners (who were allowed to charge for photocopies). What health records were turned over was left to the healthcare provider’s discretion.  If your doctor retired, sold his practice, or moved away, then getting medical records was next to impossible. This process was tedious at best and usually resulted in incomplete records being provided to patients. I personally have only received complete records one time–when my doctor died unexpectedly and his practice was dissolved.

How is the HITECH Act of 2009 Applied?

The Office of the National Coordinator (ONC) within the U.S. Department of Health and Human Services (HHS) is the principal governmental agency charged with the task of “convincing” (“incentivizing” in government-speak) private healthcare businesses to make  shareable electronic (digital) health records (officially called Electronic Health Records (EHRs)) available to patients.  Instead of giving these businesses a list of health records that MUST be included in all Electronic Health Records (EHRs), our government has created three-stage programs (called the Medicare and Medicaid EHR Incentive Programs) that have been in progress over the past seven years (and counting).  From the standpoint of the American taxpayer and patients, the two programs are really only one program, with different “incentives” (and slightly different requirements) depending upon whether the healthcare business wants to maximize income from Medicaid or Medicare patients. These government programs center around the creation of Electron Health Records (EHRs) using certified EHR software.

For a given stage of the program, “eligible professionals” and “eligible hospitals” were tasked with a series of core (and secondary) objectives (like electronic prescribing and sharing summary of care information) that had to be met. The goals at each stage of the program were aimed at gradually increasing the capabilities of the Electronic Health Records (EHRs) toward “meaningful use“.  The general goals at each stage are given below.

  • Stage 1: Take health records, make EHRs systems that meet a series of objectives and sign up some patients to use them
  • Stage 2: Be able to share EHRs with other healthcare providers for coordination of care
  • Stage 3: Use EHRs to record quality of care measures

Upon completion of Stage 3, the eligible professionals and hospitals were deemed “meaningful users” of Electronic Health Records (EHRs).

In practice, the original Medicare and Medicaid EHR Incentive Programs objectives have been watered down over the past seven years since the law’s passage as bureaucrats at the U.S. Department of Health and Human Services (HHS) negotiate with healthcare businesses to fine-tune the content of EHRs. The figure below summarizes the actions that have played out between government bureaucrats and members of healthcare businesses since the passage of the law.  The patient has been totally left out in the cold during this negotiating process that created the EHR content and structure.  The patient is merely the “trickle down” recipient of whatever final EHR product results.

Electronic Health Records negotiations

The content of Electronic Health Records (EHRs) does not necessarily include ALL the pertinent medical information that is generated when a patient seeks medical care (e.g., doctor’s notes, current health issues, lab and test results, radiology images). During the EHR Incentive Program given-and-take discussions, members of the healthcare businesses negotiate for the minimum health records that have to placed within the Electronic Health Record (EHR).

“Incentivizing” Healthcare Providers

What did it take to get private healthcare businesses to open up their filing cabinets (and internal digital records) for electronic (digital) sharing with patients and other healthcare businesses? In a word, MONEY. The HITECH Act does not demand, but rather “financially encourages” (“incentivizes” in government-speak) “eligible professionals” and “eligible hospitals” to adopt Electronic Health Records (EHRs). In a typical “carrot and stick” approach, the Medicare and Medicaid EHR Incentive Programs includes both rewards and penalties for those who do not fulfill program objectives.  Rewards and penalties are linked to Medicare and Medicaid reimbursements. In the “stick” side of the program, a 1% reduction in the Medicare physician fee schedule will occur for healthcare providers who do not become meaningful users of EHRs in 2015 and increases each year that an eligible professional does not demonstrate meaningful use, to a maximum of 5%.

Each “eligible professional” can receive up to $44,000 through Medicare or $63,750 through Medicaid (but not both) in total reimbursements. A portion of the total is given out after completion of a stage of the program.  If a given medical business includes many “eligible professionals”, then they can each register for maximum incentive payments. Hospitals are eligible for millions of incentive dollars (for example, PeaceHealth in Florence, OR: $6,962,252.51 for Stage 1 in 2013).  As of February 2016, more than 485,000 healthcare providers received incentive payments and more than 575,000 eligible professionals and hospitals are actively registered in the program.

After completing a stage of the program, an “eligible professional” or “eligible hospital” simply has to self-report  that their EHR system meets the stated objectives to receive incentive money.  More than $21.1 billion in Medicare and $10.3 billion in Medicaid EHR Incentive Program payments have been made from 2011 to 2016 (January). These “incentive” payments are funded by taxpayers and are supposed to help defray the costs that providing Electronic Health Records (EHRs) will entail. I didn’t realize that providing improved quality of care for their patients was not one of the business requirements in the healthcare industry and only of concern to taxpayers.  I wish I had had taxpayer money when I went electronic 30+ years ago.

Healthcare professionals and hospitals are not obligated to participate in the voluntary Medicare and Medicaid EHR Incentive Programs. Since many healthcare professionals operate as businesses, return-on-investment calculations might motivate the healthcare professional into non-participation especially if revenue from Medicare and/or Medicaid represents a small percentage of the total or years remaining in business is anticipated to be few.

Where is the EHR Incentive Program today?

As shown in the figure below, new lines of communication (and data transfer) have been created through online Electronic Health Records (EHRs) maintained by individual healthcare providers. Healthcare providers have uploaded some of the health records in their possession.  Patients can download them from anywhere in the world where access to the internet is available.

health records after HITECH Act of 2009

Communication and data transfer between EHRs for coordination of care (called “interoperability”) is depicted with dashed lines because issues between proprietary EHR certified software packages persists today.  From a program standpoint, this means that the process is currently stuck at Stage 2 and timetables for completion of the program have been pushed back.

If you have several EHRs, you will notice that not every EHR looks exactly alike nor even contain the same information. Selection of one standard software package or format (like the one used for MyHealtheVet at Veterans Health Administration) was not how our government chose to proceed with the application of the HITECH Act. Instead healthcare providers must choose from 750 certified software vendors selling over 850 proprietary EHR packages and over 2500 modular EHR products (as of March 2015) .

The Bottom Line

The HITECH Act of 2009 is the law that is supposed to finally bring the words “shareable and electronic” to patient health records for improved coordination of patient care. It is a necessary ingredient for an improved quality of health care and reduction in over-treatment. The ultimate beneficiaries of “shareable and electronic” health records are the patients. In reality, over the past seven years the HITECH Act has been about

  • Negotiations between healthcare businesses and our government on how much of the patient health records currently in the possession of healthcare businesses across the country must be included in the shareable Electronic Health Records (EHRs)
  • Using taxpayer-funded money and Medicare/Medicaid reimbursement penalties to “convince” private healthcare businesses to share patient health records in electronic form (we all are aware that “possession is nine tenths of the law”).
  • The exclusion of the healthcare consumer (patient) in defining the structure and content of the EHRs being created in the Medicare and Medicaid EHR Incentive Programs.  The patient is the ultimate beneficiary of Electronic Health Record success.

The bottom line is that as long as patient health records are considered financial assets of private healthcare businesses across the country, sharing them will be resisted. Unsurprisingly, seven years later, the Medicare and Medicaid EHR Incentive Programs are stuck in the “sharing” (Stage 2) phase.

When will the potential for improved quality of health care with shareable Electronic Health Records (EHRs) finally arrive? Consumers of health care need to take action.

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