Electronic Medical Records

Click to increase image sizeClick to decrease image size Notes * Third-year student, Southern Illinois University School of Law. Address correspondence to Ms. Steward at Southern Illinois University School of Law, Law Journal Office, Lesar Law Building, Carbondale, Illinois 62901. 1 See President George W. Bush, President Discusses Health Care Information Technology Benefits (Jan. 27, 2005), at http://www.whitehouse.gov/news/releases/2005/01/20050127-7.html [hereinafter Health Care Information Technology Benefits]; see also President George W. Bush, State of the Union 2004, Remarks Regarding Strengthening Healthcare for Millions of Americans (Jan. 20, 2004), available at http://www.whitehouse.gov/stateoftheunion/2004/. 2 Id. 3 Health Care Information Technology Benefits, supra note 1. 4 President George W. Bush, President's Address to the Nation (Jan. 24, 2004), available at https://www.whitehouse.gov/news/releases/2004/01/20040124.html. 5 Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. 82,462, 82,465 (Dec. 28, 2000) (codified at 45 C.F.R. pts. 160 & 164). 6 Briggs W. Andrews, Medical Records Liability, 6 Health Law 11, 11 (Summer 1992). 7 Id. 8 Id. 9 Paul T. Cuzmanes & Christopher P. Orlando, Automation of Medical Records: The Electronic Superhighway and Its Ramifications for Health Care Providers, 6 J. Pharmacy & Law 19, 19 (1997). 10 JCAHO is an independent, not-for-profit organization that evaluates and accredits more than 15,000 health care organizations and programs in the United States. As the predominant voluntary standard-setting and accrediting body in health care, JCAHO maintains relationships with a range of federal and state agencies and actively monitors legislative and regulatory activities at the federal and state levels. Joint Comm'n on the Accreditation of Healthcare Orgs., Facts About the Joint Commission on Accreditation of Healthcare Organizations (2004), available at http://www.jcaho.org/about+us/jcaho__facts.htm. 11 Mitchelle C. Pierre, Note, New Technology, Old Issues: The All-Digital Hospital and Medical Information Privacy, 56 Rutgers L. Rev. 541, 545-46 (2004). 12 Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. 82,462, 82,463 (Dec. 28, 2000) (codified at 45 C.F.R. pts. 160 & 164). 13 Id. 14 Health Insurance Portability and Accountability Act of 1996, codified at 42 U.S.C.A. §S 1320d-2 to 1320d-6 (1996). 15 Id. § 1320d-2. 16 Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. at 82,462. 17 Veling W. Tsai, Cheaper and Better: The Congressional Administrative Simplification Mandate Facilitates the Transition to Electronic Medical Records, 19 J. Legal Med. 549, 551-52 (1998). 18 Id. at 551. 19 42 U.S.C.A. § 1320d-2. 20 Tsai, supra note 17, at 551. Congress directed the Department of Health and Human Services to cover several subjects in promulgating privacy regulations concerning the storage of medical records electronically, including: the rights that an individual who is a subject of individually identifiable health information should have; the procedures that should be established for the exercise of such rights; and the uses and disclosures of such information that should be authorized or required. S.C. Med. Ass'n v. Thompson, 327 F.3d 346, 349 (4th Cir. 2003). 21 See S.C. Med. Ass'n, 327 F.3d at 349. 22 Pierre, supra note 11, at 550. 23 Id. at 551 (citing 45 C.F.R. § 164.308(a)). Addressable safeguards include, but are not limited to: implementation of procedures for the termination of access to electronic medical records when employment ends; implementation of procedures to determine whether or not the access of an employee is appropriate; implementation of electronic procedures that would terminate an electronic session once a predetermined time has expired; and implementation of electronic mechanisms that would corroborate whether electronic medical information has or has not been destroyed or altered. Id. 24 Id. at 550 (citing 45 C.F.R. § 164.306(b)(2)). 25 Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. 82,462, 82,471 (Dec. 28, 2000) (codified at 45 C.F.R. pts. 160 & 164). 26 Id. 27 Id. at 82,470. 28 Id. at 82,471. 29 Id. at 82,462. 30 Id. at 82,464. 31 Id. at 82,462. 32 Id. 33 Id. Generally, after a standard is established, it may not be changed during the first year after adoption except for changes that are necessary to permit compliance with the standard. Modifications to any of these standards may be made after the first year, but not more frequently than once every 12 months. Id. at 82,470. 34 Id. at 82,472. 35 Id. 36 Id. at 82,463. Proposed rules strengthening information protection include a rule that would establish unique identifiers for employers, providers, and health plans to use in electronic health care transactions and a rule that would establish standards for the security of electronic information systems. Id. Also, standards for claims attachments and standards for “transferring among health plans appropriate standard data elements needed for coordination of benefits” have yet to be proposed. Id. 37 Associated Press, Hospitals Move Toward “Paperless” Age, Aug. 4, 2004, available at http://msnbc. msn.com/id/5592501. 38 Martin Sipkoff, EMR Cuts Costs, Raises Quality for ENT Group, The Quality Indicator, Sept. 2003, at 1, available at http://www.qiphysician.com/common/pdfs/QIPHY0903.pdf. 39 Id. 40 Michael Fletcher, President Promotes Switching to Electronic Medical Records, Wash. Post, Jan. 28, 2005, at A7. 41 Id. 42 Cuzmanes & Orlando, supra note 9, at 19. 43 Pierre, supra note 11, at 546. 44 Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. 82,462, 82,465 (Dec. 28, 2000) (codified at 45 C.F.R. pts. 160 & 164). 45 Sipkoff, supra note 39. 46 Lynn M. Jones & Linda B. Gledhill, What a Community Cancer Center Can Learn from the Veterans Health Administration, Oncology Issues, Sept./Oct. 2003, at 29, 29, available at http://www.accc-cancer.org/ONIS/articles/sepoc03/jones.pdf. 47 Id. (citing Expert Sys. Applications, Inc., The Advantages of an EMR, at www.expert-system.com/emradvantages.htm (last visited July 28, 2005)). 48 Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. at 82,465. 49 Id. at 82,466. 50 Id. 51 Id. 52 See Health Care Information Technology Benefits, supra note 1. 53 Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. at 82,468. 54 Id. at 82,467. 55 Id. 56 See generally Wendy Wuchek, Conspiracy Theory: Big Brother Enters the Brave New World of Health Care Reform, 3 DePaul J. Health Care L. 293 (2000) (discussing the possible benefits and problems with the establishment of a national health database consisting of the medical records of every American, as well as the creation of a unique health identifier system that “would allow health care providers access to a person's entire medical history simply by pressing a few numbers on a computer keypad”). Other security issues include problems with network security, personal computer security, audit trails, and recovery procedures, including questions regarding who should have access to what information and how electronic medical records affect continuity of care. 57 Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. at 82,464. 58 Id. 59 Id. 60 Id. at 573. 61 638 F.2d 570 (3d Cir. 1980). 62 Id. at 572. 63 Id. 64 Id. 65 Id. at 572-73. 66 Id. at 573. 67 Id. 68 Id. at 576; see Olmstead v. United States, 277 U.S. 438, 478 (1928) (declaring the right to be let alone “the most comprehensive of rights and the right most valued by civilized men”) (Brandeis, J., dissenting). 69 See Westinghouse Electric Corp., 638 F.2d at 578 (citing United States v. Grunewald, 233 F.2d 556, 581-82 (2d Cir. 1956)). 70 Id. at 576. Other factors considered by the court include “the information (a requested record) does or might contain, the potential for harm in any subsequent nonconsensual disclosure, the injury from disclosure to the relationship in which the record was generated” and “the degree of need for access.” Id. at 578. 71 Id. at 581. 72 429 U.S. 589 (1977). 73 Id. at 591. 74 Id. 75 Id. at 592. 76 Id. at 593. 77 Id. at 595. 78 Id. at 598-99. 79 Id. at 606. 80 Id. at 595. 81 Jonathan B. Perlin et al., The Veterans Health Administration: Quality, Value, Accountability, and Information as Transforming Strategies for Patient-Centered Care, 10 Am. J. Managed Care 828, 832 (2004) (citing R.E. Glasgow, Does the Chronic Care Model Serve also as a Template for Improving Prevention?, 79 Milbank Q. 579 (2001)). 82 John F. Hurdle, Can the Electronic Medical Record Improve Geriatric Care?, 5 Geriatric Times 25, 26 (Mar.-Apr. 2004), available at http://www.geriatrictimes.com/g040425.html. 83 Perlin et al., supra note 81. VistA also supports ambulatory, inpatient, and long-term care. Id. 84 Office of Info., Veterans Health Admin., Vist A Monograph 139 (2005), available at http://www1.va.gov/vista__monograph/docs/vista__monograph2005__06.pdf. 85 Id. 86 Denis J. Protti, The Benefits of a Single “National” Health Record Have Been Demonstrated 1 (2005), available at http://www.connectingforhealth.nhs.uk/worldview/protti4/index__html/html2pdf. 87 Id. 88 Perlin et al., supra note 81. 89 Hurdle, supra note 82. 90 Perlin et al., supra note 81. 91 Id. 92 Id. 93 Id. 94 Id. Other benefits include computerized provider order entry, critical alerts, remote data view to access health information from other VA facilities, and a clinical reminder and notification system. Id. 95 Hurdle, supra note 82. 96 President's Info. Tech. Advisory Comm., Report to the President: Revolutionizing Health Care Through Information Technology vii (2004), available at http://www.nitrd.gov/pitac/reports/ 20040721__hit__report.pdf. 97 President's Info. Tech. Advisory Comm., Health Care Delivery and Information Technology Draft Recommendations 8 (2004), available at http://www.nitrd.gov/pitac/meetings/2004/20040413/ 20040413__draft__hit.pdf. 98 Id. at 9. 99 Report to the President, supra note 96, at viii. One recommendation discusses developing a single set of standards for electronic medical record systems that can be implemented across all federally implemented systems and shared with the private sector. Id. at 15. 100 Draft Recommendations, supra note 97, at 7. 101 Id. at 19 (stating “[r]esearch is needed to determine practical means for identifying and linking patient data from multiple sources in a unique, secure, and trusted manner that protects patient privacy and gives the patient control over the use of his or her medical information”). 102 Tsai, supra note 17, at 585. 103 President's Address to the Nation, supra note 4. 104 Report to the President, supra note 96, at 15.