Health Law

Sharing of Electronic Health Records Among Hospitals

By Helen Oscislawski

[Installment 3 - Governance Considerations from HIT for the Board and Other Hospital Stakeholders]

This is the third in a series of blog posts that relate to the governance concerns surrounding developments in HIPAA, HITECH and HIT. Jim Landers of the Washington Bureau of the Dallas News  wrote an article that was published on June 24, 2009, entitled "Administration: Hospitals unwilling to share electronic records will miss out on billions in stimulus funds." His article prompted me to write on the topic as part of this series. 

In his article Mr. Landers stated:

The Obama administration's point man on electronic medical records [David Blumenthal, national coordinator for Health Information Technology] warned Tuesday that hospitals unwilling to share such files [electronic health records or EHR] with their competitors would not be eligible for billions of dollars in economic stimulus funds.

Mr. Blumenthal was further quoted by Mr. Landers as follows: 'There's a fair amount of money in the law for hospitals that adopt interoperability [the means to share EHRs]. If they don't, they're not likely to be eligible for payment."

Mr. Landers correctly points out that many hospitals would be concerned that such free sharing of EHR among hospitals could give rise to the potential for losing patients to competitive institutions. I believe that, faced with deepening economic pressures and more highly educated patients with abundant choices, hospitals and their governing bodies must be increasingly concerned about material collateral issues that arise from sharing EHR with their competitors. 

I would add to the observations of Mr. Landers that embedded in EHR in one form or another could be relatively proprietary financial and business information regarding costs, charges or reimbursement of the hospital and/or treating physicians. In the exchange of EHR among hospitals, such proprietary information could be included. There exists a potential for the violation of antitrust laws for sharing of sensitive pricing and business information among competitors. The effect of such a violation could be a major financial and public relations fiasco for the hospitals. Removal or de-identification of such proprietary information could be costly or relatively impractical. This aspect warrants review by competent legal counsel and information technology and financial experts for the hospital. 

The ever-increasing momentum for acceleration of hospital conversion to EHR creates challenges and opportunities for a hospital and its governing board. On the one hand a hospital's initiatives in this area can possibly make the hospital eligible for stimulus money to assist in the expensive cost of conversion to EHR. On the other hand there must be careful analysis at the governing board level of such an initiative in light of the risks involved.

These questions and others should be properly considered at a high level in the hospital, with board oversight, in order to avoid or mitigate liability and litigation, maintain the hospital's reputation for candor and transparency and avoid the adverse publicity of regulatory violations and penalties.  

Full post as published by HIPAA Health Law & Technology on June 25, 2009 (boomark / email).