Meaningful Use behavioral health legislation deserves more attention

I understand that the politically-charged Affordable Care Act and its troubled roll out is a much bigger and sexier topic than electronic health records. But we would be remiss to ignore developments about EHRs--especially those that come from Congress.

Sen. Rob Portman's proposed "Behavioral Health Information Technology Coordination Act," introduced last week, would expand the Meaningful Use incentive program and adoption assistance to psychiatric hospitals, substance abuse clinics and other behavioral health providers. With so much publicity these days on health insurance coverage for the mentally ill, and the all-too-common news reports about the mentally ill not receiving needed treatment, you'd think that senator's bill would garner at least some attention.

However, it's received very little press.

What's more, Portman's bill has a companion bill in the House: a bipartisan group of Congressmen introduced legislation virtually identical to Portman's in August, although that, too, has received scant attention.

What I find amazing, though, is that these bills propose much more than mere expansion of the incentive program to behavioral health providers. They mean to effectuate tort reform for EHRs. If any of these provisions passed, it would constitute a major shakeup of the industry.

Just look at what these bills are proposing:

  • Meaningful users of EHRs, vendors who report adverse EHR-related events to patient safety organizations and health information exchange organizations would enjoy confidentiality and privilege protections. Patients couldn't get to that information in a malpractice lawsuit
  • EHRs would not be subjected to the Food, Drug and Cosmetics Act
  • Electronic discovery related to EHR-related adverse events would be limited in scope
  • Patients would have less time to file a malpractice claim pertaining to EHR-related adverse events
  • Subsequent remedial measures taken after an EHR-related adverse patient event, such as changes to the EHR system or increased training, would not be admissible in court
  • There would be equitable, proportionate, shared responsibility for an EHR-related adverse event (i.e. the vendor can't shift all of the blame to the provider, and vice versa)
  • It would be harder for a claimant to obtain punitive damages
  • Information about EHR-related adverse events could be shared without worrying about libel or slander charges

Clearly these bill sponsors did not think much about HHS' health IT safety plan or the EHR vendor code of conduct.

So why the lack of publicity from the press and patient advocates about this potential bombshell? Did people think that the bills were too boring to read? Does no one think they'd pass, or that these provisions could just sneak through? Is everyone just too laser focused on Obamacare?

No matter what one thinks of these provisions, if passed, they would create a sea change regarding the "unintended consequences" of EHRs when it comes to patient safety. Stories about how easily patients can sign up for health insurance via the health exchanges likely would be overshadowed by the effects of an EHR-related adverse event and a subsequent inability to fully address them in court simply because a provider used an EHR.  

Perhaps we should give this issue a bit more attention. - Marla (@MarlaHirsch @FierceHealthIT)