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State health laws complicate HITECH compliance

State health laws and executive orders add deadline pressure for health care providers facing strict timelines for meaningful use, standards and HITECH compliance.

State health laws established before the HITECH Act was signed last year could make life tougher for physicians and hospitals striving for electronic health records (EHR) adoption, HITECH compliance and meaningful use.

The states of Massachusetts and Minnesota have detailed health IT initiatives that predate the February 2009 HITECH Act. Among the deadlines in Massachusetts Chapter 305, enacted in August 2008, are one that requires the implementation of computerized physician order entry (CPOE) systems by October 2012, and another that requires hospitals to demonstrate interoperable EHR use by Oct. 1, 2015.

If providers do not hit these, they will be ineligible to renew certification. Under the same law, physicians must prove competency in health IT -- a skill set yet to be determined by the state medical board -- as a condition of license renewal after Jan. 1, 2015.

Minnesota Chapter 102, also passed in 2008 and updated after the HITECH Act passed, is similar. Providers have to implement electronic prescribing by 2011, and by 2015 they should be using full EHR systems. The law also established the public-private Minnesota eHealth Initiative to oversee IT efforts throughout the state, although it does not threaten providers with license renewal penalties.

Massachusetts laws parallel HITECH rules

The point of the Massachusetts law, said David Martin, policy director of the state's Office of Health and Human Services, is to increase quality of care while reducing costs -- "the right thing to do," as he put it.

The law also speeds up the building of health IT infrastructure in the state, Martin said, by putting hospital certification and physician licensure on the line, not just the gain or loss of incentive dollars. Speaking of incentives, Chapter 305 also will help Massachusetts reap a higher percentage of the estimated $1.2 billion in HITECH Act funds for which its providers qualify, Martin believes. That's because more doctors and hospitals will be EHR-ready with the Chapter 305 mandates than if the state legislature hadn't passed them.

Dr. Robert Lebow, a primary care physician and geriatrician in Southbridge, Mass., said he considers himself tech-savvy, and isn't intimidated by the prospect of wiring his practice to federal and state specifications. But the 66-year-old solo practitioner said he feels "pretty crummy" about Massachusetts' Chapter 305 requirements heaped on top of the federal HITECH mandates. He also is weighing the business costs of compliance that he will incur at this late stage of his career.

Lebow has decided to implement an EHR system in time to qualify for all the years of HITECH Act incentives -- but to hold off on choosing a vendor until later in the game to avoid as much early-adopter pain as possible.

"I'm considering retiring within five years anyway. So, is it really worth my doing that?" Lebow said of his EHR implementation. "Maybe I should just go out of business in 2015. But it will be here before you know it. … Like anybody else, [I] have to keep on top of things and make reasonable choices."

The HITECH Act, which came along after Chapter 305, is much more specific and includes tighter deadlines for health IT implementation. Because the state law is less specific, it gives the Massachusetts Department of Public Health and Board of Registration in Medicine the option of certifying hospitals and licensing physicians using HITECH's deadlines and conditions for compliance.

For example, Chapter 305 says that CPOE systems need to be certified by the Certification Commission for Healthcare Information Technology "or a successor agency or organization established for the purpose of certifying that health information technology meets national interoperability standards." Furthermore, it leaves wiggle room; the provision begins with the qualifying phrase, "Notwithstanding any general or special law to the contrary …" State regulators so far have remained in lockstep with provisions for HITECH compliance, and are consulting with the Massachusetts eHealth Institute (MeHI), a state health IT entity formed and funded by Chapter 305 to draft enforcement strategies.

"Our intention is to defer to what the federal HITECH Act indicates when it comes to defining [electronic medical record] meaningful use," Martin said. "Since MeHI is basing everything that it's doing on the evolving federal definitions, they will do the same."

Massachusetts Hospital Association members haven't voiced many concerns about the state law, said David Smith, senior director of health data analysis and research for the group. That is probably because the deadlines seem far off, especially compared with the first round of HITECH rules in place for earning incentive payments.

On top of that, Smith said he imagines that Massachusetts hospitals suspect that if any one of them lost its certification because of its EHR system, the state public health department  would have a public relations nightmare on its hands. That means that HITECH compliance is a higher priority, with the hope that HITECH compliance will mean Chapter 305 compliance as well.

"Everyone's aware, for example, of the CPOE mandate," Smith said, "but we've encouraged them to think of the HITECH Act and Chapter 305 as trying to take us to roughly the same place in roughly the same time frame. Hospitals shouldn't have dueling standards out there, particularly when the state plan did not include any funding along with it."

Minnesota law lacks 'carrot and stick' of HITECH Act

Minnesota was ahead of the curve when it came to adopting health IT, providers say, but they have been eyeing the deadlines for Chapter 102 with some misgiving. Before the HITECH Act, there was very little money available to help hospitals and doctors ramp up IT, according to Joanne Sunquist, CIO for Hennepin County Medical Center. The state law pointed in the direction where everyone wanted to go, but "it didn't really have the carrot and the stick that went along with the HITECH Act," she said.

HITECH compliance requirements for meaningful use and standardization are more proscriptive than the state mandates, Sunquist said. The stricter deadline established by the federal law has perhaps a bigger impact for providers in rural areas, she added. Larger hospitals and health systems were already on their way to implementing EHR and e-prescribing systems.

Hospitals shouldn't have dueling standards out there, particularly when the state plan did not include any funding along with it.

David Smith, senior director of health data analysis and research, Massachusetts Hospital Association

Although there are no real penalties tied to Minnesota's law, providers that do not implement technology by the due dates could be considered to be in technical noncompliance, a misdemeanor, said Mark Sonneborn, vice president of information services for the Minnesota Hospital Association. "Nobody wants to be in technical noncompliance."

Even that possibility has not been enough to get IT ramped up among smaller pharmacies and providers, however. "It's really the clinics in those smaller communities that we have to get up and running," Sonneborn said. Part of the problem, at least with e-prescribing, is that smaller, mom-and-pop pharmacies are not using electronic systems. That makes it more costly and less relevant for hospitals using those pharmacies to implement their own systems. "The HITECH incentives caught everyone's attention," he said.

Without the HITECH rules, it was unlikely that providers in Minnesota would have met the state's deadlines, Sonneborn added.

And yet, states have a role to play in the federal rules, said Hennepin's Sunquist. Especially in such areas as interoperability, states are required to oversee health information exchanges, or HIEs. States also will have to come up with criteria for their Medicaid programs if doctors choose to seek HITECH incentives through it instead of through Medicare. Minnesota is prepared to handle those, she added.

Let us know what you think about the story; email Don Fluckinger, Features Writer or Jean DerGurahian, News Writer.

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