EHR users: Meet big brother

Within the past month, we've heard that electronic health records are under the gun for potential noncompliance of not one, but four different laws.

First, Centers for Medicare & Medicaid Services Acting Administrator Marilyn Tavenner reaffirmed that CMS will be conducting "targeted" audits of providers who use EHRs for inappropriate upcoding and other improper billing. Then we learned that CMS, in an apparent shift in policy, has opted to conduct not only post-payment audits of Meaningful Use attesters, but also pre-payment audits of select providers.

Now, we find out that providers are being scrutinized for denying employees and patients access to EHRs, other health e-tools and healthcare services in violation of the Americans with Disabilities Act. And that's on top of the increased enforcement of the Health Insurance Portability and Accountability Act we're likely to see by the Office for Civil Rights, now that the HITECH omnibus rule is live.

What's happened? In just a few short months, EHRs have gone from the darling and savior of the healthcare industry to a lawless scourge.

As a health lawyer, I am a staunch proponent of compliance, and EHR users are no exception. It is important for the integrity of these laws to be maintained, and for the laws to be enforced. Incentive payments and reimbursement should be going in the right amounts to those who deserve them. Patients' confidential data must be safeguarded. No one should discriminate against the disabled, however unintentional it may seem.

But all four audit initiatives kicking in at once?

It seems overwhelming. And it's unlikely that the different government agencies involved--CMS, the Office of Inspector General, OCR, and the Department of Justice--will be coordinating their investigations. Any audit, no matter how small, is time consuming and burdensome. It takes staff away from doing their jobs. Even the most compliant provider still will need to go through the process. Meanwhile, hapless providers already are juggling so many balls just to take care of patients.    

I realize that it's not likely that a particular provider will get slammed with four investigations of their EHR use, let alone all at once. But the mere fact that it's possible seems daunting.

No wonder so many providers are unhappy with their EHRs. On top of everything else, they're creating legal headaches. - Marla (@MarlaHirsch)

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