American Health Information Community

EHR Workgroup Meeting

September 19, 2006

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\>\> We\'re ready, Matt?

\>\> Matt McCoy: Yes, we are. Go ahead.

\>\> Good afternoon everyone, and good morning to those on the west
coast. Welcome to today\'s American Health Information Community
Electronic Health Records Workgroup conference call. Thank you all very
much for being here. And thanks also to Jon Perlin. He is in his new
role at ‑‑ I think you are in Tennessee now, Jon. So as my Co‑chair,
would you like to say hello?

\>\> Let me just thank you, Lillee, to your continuing leadership,
to the office of the national coordinator and to all the members of the
group. It is really very exciting. I have, as you may know, left as
Under Secretary of Health for the Veterans Health Administration to come
to the private sector. And in fact I make this note because it really
gives me another perspective on the challenges as well as the
opportunities for implementing health information technologies and, in
particular, the electronic health records. So again, appreciating
everyone\'s work in a shared mission. What remains a constant between
environments is that it\'s very clear that the electronic health record
not only will meet Secretary Leavitt\'s mandate to make obsolete the
clipboard we visit every time we tend to go to health care but will
improve the safety, effectiveness and efficiency of our health services.
So thanks, Lillee, and I\'ll turn it back to you.

\>\> Thank you, Jon, for your leadership and remaining on, because last
week we celebrated the one year anniversary of the American Health
Information Community. And we are now entering into a phase here where
our efforts need to be sped up, focused and concentrated on doing the
right things. So we need you.

> Matt, before much, going much further, would you please take a roll
> call of membership?

\>\> Matt McCoy: Sure. On the phone for today\'s call, Bart Harmon from
the Department of Defense, John Tooker from the College of Physicians,
Howard Isenstein from the Federation of American Hospitals was with us
briefly. It looks like he\'s just disconnected, but he may be calling
back. Dan Morreale from AtlantiCare is here representing George Lynn
from the American Hospital Association. Co‑chairs have already
introduced themselves. I believe that\'s it. Are there other members on
the phone?

\>\> John Houston. I don\'t know if you mentioned me.

\>\> Matt McCoy: I\'m sorry. And John Houston from NCVHS is on the phone
as well. Is there ‑‑ Judy, is there anybody with you over at the room in
ONC?

\>\> No -- Alicia Bradford, myself and Gloria Cohen are here.

\>\> Okay. And as we always do, just a quick rundown of the procedures
for the call. Worker members, please make sure that you have your phones
muted when you are not speaking. And when you do come in to make a
comment, please introduce yourself so that members of the public
following along over the phone or on the Web know who you are.

\>\> Tremendous. Well, thank you, Matt. And we have a lot to do,
especially for those of you that may not have paper in front of you, is
just to review the very important work we have in front of us today. So
as a part of our agenda, we first are going to be talking about formally
adding a Veterans Administration member since John\'s role has moved to
the private sector. We are also going to spend some time today on
prioritizing our state of the technology issues. You may recall from the
AHIC meeting last week that we discussed the four critical components
necessary to achieve our broad charge as the Electronic Health Record
Workgroup. The state of the technology, the second is financial, the
third organizational and the fourth legal regulatory. Today we are going
to be talking about the state of the technology in terms of
prioritization. We also will hear testimony for that legal regulatory
domain from Nicholas Terry who is a law professor and from Tom Leonard
of McKesson Corporation. So we will be dealing with two of these four
very meaty issues in the course of these discussions today. We will also
talk about President Bush\'s recent executive order that impacts our
work. And as always, we want to invite public comment, which I just want
to make sure that we leave adequate time for that because the views of
the total health care community are so important to this work.

> And I would have prioritized the top two goals to come out of this
> meeting, a high level after we are together for a several hours. The
> first would be just to prioritize this list of desired EHR
> functionality so we can draft our recommendations to AHIC and, the
> second, how we plan our work for the next year, you know, regarding
> these critical components. What more do we need to do.
>
> So with that, also is your attachment. Let me just say that you should
> have four meeting documents. The first is the meeting summary from our
> August Electronic Health Record Workgroup meeting. The second is the
> Institute of Medicine report that was referred to very frequently
> during our AHIC meeting last week. And Alicia Bradford was so kind to
> get us both the full document, which was an attachment for this
> meeting. It is called Key Capabilities of an Electronic Health Record
> System Letter Report and the Eight Core Functionalities for EHR were
> what we were referring to last week, that some of us had not reviewed
> that report in quite some time. The third attachment was the executive
> order permitting quality and efficient health care and Federal
> Government administered or sponsored health care programs. And then
> the fourth meeting document of course was our presenter\'s material.\
> \
> So hopefully with that agenda review and with the review of meeting
> documents, let\'s get started and begin with the discussion around
> formally adding a member from the Veterans Health Care Administration.
> As you know, Jon Perlin has moved to HCA, Inc. as Chief Medical
> Officer and Senior Vice President for quality. However, the input of
> the Veterans Administration is so very critical to this work. And I
> just have two issues and ask Judy Sparrow to please oversee this
> discussion. We can either request a member from the Veterans
> Administration, ask the office of the national coordinator to invite a
> VA representative, go through the process. Have no idea how long that
> would take, but that would be a very formal process. The second would
> be to just ask for today\'s VA participant to be active in this
> conversation and stand in until we can get the correct fettered
> representative from the VA permanently assigned to the Electronic
> Health Records Workgroup. So with those two options on the table,
> Judy, if you will take over the discussion here and help us work
> through this particular agenda item.

\>\> Yes. I think just for the issue of continuity, having Linda
Fischetti represent the VA on the Workgroup today and formally recognize
her as sort of an acting Workgroup member for now until we can talk to
somebody at the VA and get a permanent person nominated and approved. I
think that\'s a good plan. And if there is no issue otherwise, I suggest
we proceed on that understanding. Are there any concerns?

\>\> Any discussion from Workgroup members? Could we hear an affirmative
about just asking Linda Fischetti to be active in today\'s call?

\>\> This is Jon Perlin. I think many people on the Workgroup actually
know Ms. Fischetti. She\'s nationally recognized, nursing for medicine.
Been very active in HL7, establishing that mission of standards and
tremendous leader. And the Veterans Health Administration, I think,
would benefit from her insight tremendously. So both in the interim and
hopefully with due process, I think she would be a terrific asset to the
group.

\>\> Agree.

\>\> I agree.

\>\> Well, thank you. I\'ll go ahead and participate today. Thank you
very much.

\>\> Great consensus for you, Linda. Thank you.

\>\> Great.

\>\> Once you get on the committee, you can\'t get off it, Linda.

> \>\> She is invaluable to me. I just cannot tell you how she has
> helped me so much. I appreciate that.

\>\> Now, it is the intent to find what we would consider the most
appropriate representative for this committee. So I may not be the
long‑term representative, and we do plan to have named the long‑term
representative by the next time this committee meets.

\>\> Great.

\>\> Thank you.

\>\> Okay. Let\'s move to reviewing and accepting the minutes from our
August meeting. Were there any additions or corrections to the minutes?

> I really would like to thank the staff because I do think you do a
> terrific job in capturing the, both the explicit work as well as the
> intent of the work.
>
> But were there any additions or corrections? Hearing none, I\'ll
> declare consensus around the acceptance of the minutes from our August
> 15, 2006, Workgroup meeting. At that time that was the eighth Web
> conference of this Workgroup. Today\'s is the ninth.
>
> Let\'s move to the next agenda item. And I\'m going to ask the
> committee for your indulgence. We have a number of speakers and
> participants today whose participation is time‑limited. So it may seem
> that the agenda may get a bit frenetic as we are jumping from one
> speaker to the next to accommodate their very busy calendar, so I ask
> you for your indulgence with that aspect.
>
> To begin with, let\'s talk about the critical component around the
> state of the technology. As you know, last week during the AHIC
> meeting we did talk about the four critical components necessary to
> achieve the broad charge of this Workgroup, and state of the
> technology was first. So as you see, the list here around patient
> identification and demographics, family history, medication list,
> medication allergies, problem list, clinical encounters and notes,
> anatomic pathology results, vital signs, pay for use, pay for
> performance and the STARK anti-kickback regulations. You will notice
> there are some other additions here, such as immunizations where the
> allergy concept or entry reminders, et cetera, that we were also
> considering. So, Judy, there may be ‑‑ and, Alicia, there may be a
> couple of other keying of the issue components that you would like to
> add to this as we begin our discussions.

\>\> This is Alicia. I don\'t believe so. I believe that we have
captured all of the functionalities, we will say, of the technology from
previous discussions of the Workgroup, especially the discussion by
Colonel Harmon regarding the VA and the DOD. So I think this is a fairly
complete list, representative of the Workgroup\'s previous discussions;
but I\'m sure that if others have other suggestions, that this is the
appropriate time to address them. But as you mentioned, the goal is to
prioritize this list and have it be part of a recommendation to AHIC.

\>\> And I would say, Alicia ‑‑ and, John, you can put your private
sector cap on now, please ‑‑ but this list is fairly complete, I agree,
with the VA and DOD parameters. But I assure you that that is not
absolutely true in the private sector.

\>\> I think, let me just, trying ‑‑ we need to approach this in two
ways. One, what is the ideal; and two, what is also the most practical
or pragmatic in terms of achieving some of these things. I don\'t know
if anyone is on line from the American Hospital Association. But, you
know, there\'s been ongoing discussion about, what we get traction. And
I just simply note that there is a lot of convergence, discussions that
I\'ve recently heard there. Certainly you cannot get to a health record
without identification. And so, you know, I think one of the things that
has to be a priority is the ability to have an effective and secure
identification of particular players in the health care equation.
Ultimately all persons, but most centrally the patient.

\>\> Yeah, this is Dan Morreale. Just wanted to add to Jonathan\'s
comment about the convergence. And I believe in the August meeting we
really identified that many of the initiatives that were happening on,
external to the hospitals were microcosms of what was happening within
the hospitals. And we think there is a conversion, convergence that can
occur there and synergy in getting stuff moved forward.

\>\> Okay. This is John Houston. I\'m looking at the list, and it seems
like there is a lot of mixing of apples and oranges on the list itself.
And I\'m just wondering, what\'s the purpose again of trying to
prioritize and ‑‑ what is the purpose here again?

\>\> Alicia, I don\'t know if you want to add to that. I know that\'s
one of the downsides of not having Karen Bell here. Because when we
were, kind of put this together last week, she was pretty explicit on
articulating what the issues were. But we do need to, I do agree the
list is fairly complete about what\'s available, but prioritizing so
that we can make a recommendation to the full AHIC.

\>\> Because you have both clinical and non-clinical components there.

\>\> M\'hmm.

\>\> And it seems to me that they don\'t ‑‑ I mean, anything used paper
form and STARK anti-kickback, and you have all these other things that
either directly or indirectly really relate specifically to providing an
EHR and four components of an EHR.

\>\> Well, you know, I learned a new term at AHIC last week, and that
was policy interoperability, not just technical interoperability. And
some of us may play into what those discussions were as well.

\>\> Yeah, I understand the need to prioritize, that type of
prioritization. But it really seems like there really, they almost have
to do this in two different buckets because you both want to look at the
information that you are wishing to convey and trying to prioritize it.
But then there is a whole group of other issues that are also, have to
be prioritized that have nothing to do with the information and have
everything to do with developing the architecture and the framework and
whatever else in order to provide the information you have just
prioritized.

\>\> I think ‑‑ this is Jon Perlin again. I think it is a very useful
comment because ‑‑ really, first endorse the concept of policy
interoperability. I think there are two aspects on this list. One is
what are the most critical items of information. And it is interesting,
because of course the elements of information take us back to the
testimony we heard from emergency providers, College of Emergency
Physicians, governors association, et cetera, about what would have been
most critical. And not coincidentally that these also turn out to be
vital elements as prerequisites for meaningful information in an
electronic health record. So I think one group is a hierarchy of what
are the most critical elements. I think it may be possible to have a
list of strategic sort of publicity aspects that need to be teed up to
make it possible. And I think they can be interoperable, but perhaps
more clear about the internal and external audiences if we separate the
information elements from the policy elements or recommended approaches.
I wonder if you would support that approach.

\>\> Well, I would certainly support it. You know, if you separate them,
the ‑‑ we just had that terrific presentation from the American College
of Emergency Physicians, as you say. And they had already outlined very
clearly what routine data needs were and what emergency data needs were,
which in my mind was really helping me understand what the priorities
were. Because you would naturally think that the priorities would be, in
the emergency EHR case, those are the highest priorities and, therefore,
they should go to the top of any list. I cannot imagine any scenario
where, in an emergency, it\'s top and then another scenario would not
be. But I think that the issue on the table is a really valid one about
having both clinical and non-clinical issues here, and how would that
form our thinking in making recommendations to the full committee.

\>\> And there is an inescapable inter-linkage of policy and data
elements ‑‑

\>\> Yes.

\>\> ‑‑ particularly the very first one. Okay. So when I have secure
identifiable patient information, what does that imply at a policy level
about a consistent nomenclature for patient identification? Because
if ‑‑ it\'s not going to be patient identification if it\'s not
interoperable.

> So we need to tee us ‑‑ help very clearly what is the policy
> relationship of asking for a patient identification.

\>\> And, Judy, I would bring you in here. And this also spills into the
whole confidentiality and privacy piece and the policy issue as well.

\>\> Right. That\'s right. And that\'s some of the issues that they are
taking on in that group as they get started.

\>\> That\'s a ‑‑ you know, what John has just keyed up here is an
excellent example of how the policy issues are intertwined with the
non-policy ones. Really hard to look at these as discrete, stand alone
entities.

\>\> Yes, but I think it get confused as soon as you start ‑‑ I mean,
there is two different types of issues. And I understand they are
inter‑related but you have to ‑‑ I mean, you have to look at the
information as one bucket, and recognize that there is a whole group of
other policy and technical issues in the other bucket that are ‑‑ I
would think it has to merge but you want to keep them separate for
clarity purposes and not to confuse, to confuse things.

\>\> Hi, this is Alicia. And I see where this group, there\'s two
different views here. I would think that perhaps we\'re talking about
the state of technology that we could really prioritize what we think
the doctors want in the electronic health records just by function. And
then we will need to indicate which ones have policy implications. And
then the last three, 9, 10, 11, that really aren\'t very technical, more
policy, we might be able to put in one of the other critical components
we will prioritize later. Whether it be financial or legal regulatory.

\>\> Let me ask, if we take that tact of what do the doctors want, it
would seem that the 40% of health care in America that is already
electronic do the VA and the DOD, is ‑‑ that\'s a very large critical
mass. So is this list in the priorities that the VA and DOD doctors
identified.

\>\> Yes. And then actually page 3 of the summary of the previous
meeting. And paragraph (c).

\>\> This is Bart Harmon. If I could jump in. I transmitted that to you
and that is the DOD/VA consensus for our ‑‑ this is in a different order
now, but it was the list of items that the DOD and VA pulled together,
prioritized, as pieces of clinical information that needed to be shared.
The administrative and legal things toward the bottom there are
additions that were outside of the clinical information that the DOD and
VA started with.

\>\> And they are from previous presenters to the Workgroup.

\>\> M\'hmm.

\>\> Such as the adoption survey presentation we had a few meetings ago.

\>\> Right. We have had a lot of testimony around that. I\'m just trying
to match the minutes\' notes from the DOD and VA to the list that we
have on our agenda.

\>\> Yes, this is John Tooker. I\'m tying to do that, too.

\>\> Yes.

\>\> And the one that I don\'t see there is laboratory results other
than anatomic pathology results.

\>\> Good catch.

\>\> And I left that out because the Workgroup has already made a
recommendation and addressed that as our specific charge. So the
Workgroup has already made recommendation to AHIC based on that.

\>\> I sure wouldn\'t want it to fall off any major list though. You
know, even if we list it and having it in parenthesis already handled by
the Workgroup.

\>\> Sure.

\>\> Yes, I don\'t see a problem with listing it twice.

\>\> Yeah. Yeah, yeah, yeah. I agree.

\>\> Whoever looked at this may not be looking at what we recommended it
to the AHIC at the same time.

\>\> This is a huge challenge in front of us, to get this right, in
terms of priority.

\>\> Well, you know, the other point about this is that you can look
through all of them and say that there really isn\'t a priority one
through whatever. There is a certain core list of things that are
priority one and you just have to have them.

\>\> Well, you know, I don\'t have it right in front of me. You should
see my AHIC paper in front of me. But it seems to me when we were
dealing with the disaster EHR, the first responder EHR ‑‑ John, you and
I went through this a couple of months ago. These were, like, the top
four or five things that absolutely needed to have.

\>\> That\'s right. You know, I think we received pretty compelling and
clear testimony on the clinical data elements.

\>\> Yes.

\>\> And I think we should be true to the history of the testimony we
received. I think simultaneously though we can sort of keep a clinical
element list in one column and the policy initiative in another column
without, without running afoul either with the testimony that was
previously provided and also keeping clarity, these are the clinical
data elements and these are supporting policies. And I think it will be
fairly understandable that if we say we need patient identification as a
piece that there is, there has to be an implied policy in the other
column that is some standard and interoperable mechanism for reliable
and valid identification of patients. That sound okay?

\>\> Yes.

\>\> Yes.

\>\> I just don\'t want to lose the policy pieces because that\'s what
frequently hangs us up. But I like the idea of putting them in two
discrete categories, side by side.

\>\> Hi. This is Alicia. I\'ll capture the testimony today to try to
send out a draft recommendation for the group to read. The other
editions listed below that we had heard testimony from previous
presenters, are they considerations for this list of critical data
elements or are we going to only stick with the VA/DOD prioritization.

\>\> I\'m surprised to see that radiology is not in the DOD or VA
prioritization. Is that clustered somewhere? Is it hidden somewhere else
under clerical encounters or ‑‑

\>\> Actually in the summary, they have the text only radiology reports.

\>\> Text only.

\>\> And I can work with Colonel Harmon offline maybe to ensure that
what we have is actually not just the list but it is the prioritized
list.

\>\> It looks like radiology reports have disappeared.

\>\> Yeah.

\>\> They were on the list.

\>\> So ‑‑ oh, I see, Colonel Harmon. It is in the minutes of our August
meeting, but they are not on this list. All right.

> Is there any ‑‑ we need to add radiology?
>
> Are consults considered clinical encounters?

\>\> This is Dan Morreale. Internally within the hospital they are.

\>\> I would think so. I\'m just, from a VA/DOD standpoint is that where
they are captured?

\>\> This is Jon Perlin. Just for the sake of timing, answer yes, that
if they\'re clinical encountered ‑‑ or captured clinical encounters.

\>\> Yeah.

\>\> From the DOD perspective, that\'s why it is says slash notes,
instead of being an encompassing term of, you know, if information like
that is available, whether we generated it or got it from someone else,
we need to be able to share it.

\>\> Alicia, do you have enough to try to put something together that we
as a committee can react to now?

\>\> Sure. Just one clarification. Under clinical encounters and notes,
because the DOD\'s list is actually radiology just a textual report, are
we going to consider that to be a component of the clinical encounters
and notes, or do you want to add that?

\>\> In the Veterans Administration is it text only or don\'t you have
PAK systems?

\>\> If there are live images available but, you know, I think the
thinking was ‑‑ and Linda Fischetti, please chime in if you are there ‑‑
in terms of prioritizing, if you want to get the information first, you
know, this is, to use our very first meeting metaphor, the most
aerodynamic is to get the report and then later to have the bandwidth to
carry the actual images.

\>\> Yes, absolutely. And thank you. I was trying to figure out how to
unmute.

\>\> Okay.

\>\> Okay. And on the other additions, we are not going to include any
of those? Those will just be 1 through 9, and I\'ll ensure that I work
with Colonel Harmon to prioritize ‑‑

\>\> But if you could put in parenthesis, I think I\'ve heard some
robust discussion here around the fact that consults are captured under
clinical encounters. And we need to add radiology.

\>\> Yes. This is Bart Harmon again. Just to answer the earlier
question, we, at least for our purposes in the DOD, consider radiology
reports to be different than a lot of other clinical consultations.
Technically it is a consultation, but it is ordered and resulted more in
the mode of a lab test. So electronically it behaves almost more like a
test than a consultation. So we handle radiology reports as a separate
item from clinical notes and consultations.

\>\> But it would be nine entries, plus the three that would be more
policy issues? There is eight on this list, on the agenda. We add
radiology as nine. Make sure, Alicia, you will work with Colonel Harmon
to make sure that these are in the priority of the DOD and VA. I cannot
imagine we are going to recreate, reinvent the wheel here.\
\
And I have pulled up the emergency EHR First Responder testimony we had.
It was May 2, if anyone would like to know. And in terms of
prioritization, it was demographics, patient ID, medications and
allergies, was really high priority, and then problem was, came right
after that. If we are needing to refer back to that presentation.

Okay. Judy and Alicia, anything else that we need to do in this list? I
just want to ask the group, we haven\'t talked about immunizations at
all. It seems like immunizations was under, was it one of the
breakthroughs? Under the quality monitoring and reporting? Let\'s me
bring through others of the workgroups.

\>\> Yes, I believe it\'s either ‑‑ in that Workgroup and potentially
the biosurveillance.

\>\> But is that being handled somewhere else?

\>\> I don\'t believe to the discrete level of immunizations it\'s been
handled in biosurveillance yet.

\>\> No, not really. Definitely they have talked about it in
biosurveillance immunizations, but I don\'t think it\'s been a
particular focus.

\>\> For the public that may be listening in, this is the potential
breakthrough number 2, health improvement, and under that breakthrough
we had listed childhood immunization records as one of the breakthroughs
that would help us deliver safe care.

> So in terms of state of the technology and the discussions today, can
> I just ask Colonel Harmon and Linda, where is immunizations in the
> electronic venue of the DOD and VA? I don\'t know.

\>\> This is Bart Harmon. I would actually have to go back and look at
the original document to will see if it was on that or not. If we
didn\'t include it, if we did not include that across the DOD and the
VA, it might be because we generally probably in the DODs administer
most of our immunizations ourselves. And I think if we refer people to
the VA for care, it would tend to be something other than immunizations.
So it may be something that\'s a little bit unique to us as two
organizations and how we see our patients rather than reflecting the
importance of the immunization, the information itself.

\>\> Interesting.

\>\> Hi, this is Linda. I went ahead and pulled up what you had
previously submitted as the prioritization list, and that does have
immunizations on the list but it has it at the very bottom. Number 10.

\>\> Oh, good.

\>\> Oh, good.

\>\> I was running back and forth to the computer trying to find that.

\>\> And of course maybe in pediatric environment that would be
something that would be higher priority, but on this list it was number
10.

\>\> I can tell you, Colonel Harmon, being inducted into the Navy; I
remember standing in that long line with that big gun. So I know you ‑‑

\>\> Yeah, and we usually do them ourselves.

\>\> Yeah. Yeah, yeah, yes.

> So do we have consensus around 10 here? Am I hearing that? John? On
> that 10?

\>\> I think there are 10. And we are going to come back again, revisit
the rank ordering.

\>\> Yes.

\>\> Because I do think your earlier point about the testimony from the
emergency provider community, who was very critical and it would seem
that, not only the elements overlapping, but I think we heard pretty
clearly what is the sort of de minimus for emergency care.

\>\> That\'s right. It was called discrete data needs, both in the pre
hospital EMS and the hospital ED. Two very discrete lists, and I think
we ought to consider that.

\>\> I also take note of the imperative that Secretary Leavitt really
placed on thinking about those elements for national disaster
preparedness, or readiness. So I think there is also another dimension
that we need to make sure we honor.

\>\> Anything else on this one? Judy and Alicia, can we proceed?

\>\> I think ‑‑

\>\> Yeah. I think I heard enough to get, feed something back to the
group.

\>\> Well, there is ‑‑ I\'ve heard two very important decisions that
have been made here. This list of critical components is in a list of 10
now, not a list of eight, and that we need to be consistent with the
prioritization of the Veterans Administration and the Department of
Defense. And secondly is this notion of having mixed both clinical and
non-clinical indicators. But the inescapable linkage between policy and
non-policy issues can\'t be sidetracked. So our recommendation would be
clustered into those that are the clinical and those that are the policy
issues, policy or technical issues. Have I restated that correctly?
Okay.

\>\> Yeah.

\>\> Next we should be discussing prioritizing and planning for the four
critical components necessary to achieve our broad charge. And I\'m
struck here, just looking at time. I need help from the team there in
Washington, but I think Professor Terry was only available for a period
of time here between 1:30 and 3 Eastern Standard Time, and this may be
the time to bring in our testimony before we do anything else.

\>\> Yes, that sounds like a good plan.

\>\> So if I could ask the committee\'s indulgence and we will go
straight to our legal and regulatory testimony. And our first
presentation was from Nicholas P. Terry, who is a law professor, who
agreed to help us tee up this critical issue. Professor Terry with us?

\>\> I\'m here indeed.

\>\> Hello. If you will just introduce yourself, give us a little bit
about your background, and we look forward to your remarks.

\>\> Well, thank you. My name is Nicholas Terry. I\'m the Chester A.
Miles Professor of Law at St. Louis University Law School where I am the
Co-director of the Center for Health Law Studies. Centre of Health Law
Studies is the largest academic health law Institute in the country. And
for the last, what is it now, 3 years we have been rated number one in
health law by U.S. News and World Report, which of course therefore has
to be believed.

> I only heard about this yesterday so I apologize if some of my remarks
> are underdeveloped. I also please ask you to stop me when you need to,
> and make me drive down into more detail or the opposite where it can
> be helpful to you all.
>
> I suppose that the problem that non-lawyers typically have with
> lawyers is twofold. And I\'m sure I\'m going to satisfy your
> prejudices today. First of all, we tend to bring bad news. And
> secondly, we don\'t supply very clear answers to questions.
>
> I\'m going to talk today about sort of the theories of medical‑legal
> incentives, or primarily disincentives to electronic health records.
> But I would like to tell you all in advance that, while I\'ve been a
> strong critic of some of the privacy proposals surrounding electronic
> health records, I am a huge supporter of the rapid introduction of
> health information technologies into U.S. health care, and you should
> not take my comments today or to try and give you information. They
> are not an attempt to bury HIT.
>
> I suppose there are a couple of pieces of relatively low‑hanging fruit
> when one makes up a list of these medical‑legal issues. The first of
> those is the legal regulation of financing incentives. And I\'m really
> not going to touch much on that today because I think you already have
> access to very good and inexpensive information from CMS and OIG about
> the MMAs, Safe Harbor, the OIG Safe Harbors, CMS, STARK exceptions,
> the ongoing Federal proposals on that. The other obvious piece of
> low‑hanging fruit is privacy and security because that\'s probably the
> largest and most complex area, but one that you are already familiar
> with. I\'m going to leave that to last so if I drone on too much you
> can stop me or ask me to drill down.
>
> I\'m going to start by looking at sort of four, if I may call them,
> clusters of issues that I see here. I\'m going to call these,
> hopefully helpfully but maybe not, the architecture cluster, State
> records law cluster, thirdly adoption transition cluster and,
> fourthly, a general liability cluster. So architecture, State records
> law, adoption and transition and, fourthly, general liability before I
> return to privacy and confidentiality.
>
> The architecture cluster of issues really falls out of the difficulty
> that we have in really figuring out what a health record is in this
> new environment and hence what a physician needs to read to refer to.
> Now, much therefore of the, not just the answers to these questions,
> but even how you frame the question is going to be a function on what
> the final EHR, national EHR model looks like. Whether for example it
> is going to be an explicitly warehouse model or a pointer model,
> whether we are going to see the distribution of a complete or summary
> record and more detailed, more granular issues such as whether, when a
> physician accesses the interoperable record, does the whole text of
> that interoperable record then become, either physically or
> electronically, or should it be deemed as becoming part of the local
> record that is maintained by that physician. And of course all that
> gets wrapped up by sort of the broader question of whether or not
> there should be portability issues such as those raised by
> Dr. Brailer\'s *New York Times* editorial today.\
> \
> There is a specific issue with regard to patient added data. I think
> you could at least take one position that in the near‑term we are
> going to see a faster implementation of personal health records, PHRs,
> than EHRs before we get the national EHR explosion. We are seeing a
> lot of employers, software vendors and others supplying PHRs, or PHR
> building tools. And a question that comes up there is the extent to
> which a physician may be under some kind of liability exposure for,
> for example, not requesting PHR data or not reading PHR data if a
> patient offers it.
>
> As we get into the full interoperability of an EHR, the question
> becomes as to whether the specification will allow the importation
> into the physician‑run EHR of PHR data. If that does happen, would it
> be, for example, negligence for the physician or for the software
> vendor or the hospital to just allow that data to flow into the health
> record, or without it in any way being tagged as patient generated
> data.
>
> In other words, do we, are we going to have to build some ‑‑ if we are
> going to allow patient health records, PHR data to populate the
> electronic, the interoperable record, should that be in some way
> tagged, should it be obvious to a physician that was not put in by a
> medical professional?
>
> Will patients be contributorily negligent in a possible malpractice
> action stemming out of an adverse event, for not offering or
> delivering available PHR data to their doctors? So there is a broad
> range, I think, of those kinds of issues that may be, lead to some
> exposure; and because of potential exposure, some disincentives to
> physicians to move into the EMR/EHR area. Let\'s assume however that
> we have a physician who is part of the EIHR, and let us think about
> physician bringing up the screen, be it a warehouse record or an
> interlinked record. Being able to look with all the benefits that we
> hope for at that record. I think there is some quite difficult issues
> as to what the doctor\'s obligation is with regard to the entire
> record. Let me just give a simple example. Assume that ‑‑ well, we
> know that on average what, U.S. patients have 11 siloed records kept
> on paper. Let\'s assume that a prior doctor has entered data with
> regard to this patient, data that was in some way inaccurate or, to
> another physician, would appear to identify a risk. Let\'s assume that
> Dr. Number 2, or I guess in my example it could be as high as doctor
> number 11, pulls up the interoperable record in order to deal with a
> discrete issue brought to her by the patient. And in the process of
> bringing up the record and scanning it, sees a possibility of a bad
> diagnosis earlier in the chain on a completely unrelated physical or
> psychological issue.
>
> There is a really difficult question as to the extent to which that
> later physician, number 11 if you like, could be liable for not
> telling the patient about what he saw or not further investigating it.
> The best analogue that I can offer you at the moment, since this issue
> obviously has never come up, that I am aware of, the best analog is
> the insurance company doctor who is employed by an insurance company
> or by, say, a Workers\' Compensation carrier, an employer, who
> examines the patient for a specific issue, a coverage issue for
> example and, in the course of that, identifies or reasonably should
> have identified something that is not directly related to the reason
> for that visit. And the courts have in some cases imposed liability on
> physicians for failing to pass on to the patient information about
> some critical or dangerous condition.
>
> I think another kind of issue that might arise here is with regard to
> informal consults. In your earlier conversation you were talking about
> consults and how they get absorbed into the record as a tradition.
> That\'s probably not the case with informal consults. You know, the
> shared elevator conversation between two physicians. Generally
> speaking, in those informal consult situations the consulting
> physician does not view the record. The information, the data is all
> provided by the doctor asking for the consult. Well, in a world of
> interoperable health care, that full record is simply a key stroke
> away from the consulting physician. Would there now be a duty imposed
> on that doctor before giving an opinion to actually look at the record
> and, generally speaking, very generally speaking, our consult
> liability laws suggest that looking at the record opens the physician
> up to liability for a formal consultation. So there\'s quite a lot of,
> sort of ugly indeterminacies there.
>
> I think somewhat outside the scope of what we are talking about today,
> but I do need to mention, is the ownership of records. Again this is
> an architectural question. The physician clearly, or the hospital
> clearly owns the records, and this is often a matter of State
> statutory law that the physician owns the record.
>
> Does the physician, does ownership of that record expand to include
> ownership of linked data that is perhaps absorbed into the local
> record because of interoperability?
>
> Other sort of technical questions around this which are related to
> architecture would involve things like litigation and discovery of
> medical records. For example, who would be the record\'s custodian
> that you would subpoena in order to get access to a record when you
> have, say, my hypothetical 11 records spread around the country, but
> in a sense they are also a single record because of their
> interoperability. So that\'s sort of the architecture cluster.
>
> Secondly I\'m going to talk a little bit about State records laws.
> Now, I stress, these are in addition to Federal HIPAA privacy and
> security and the so‑called more stringent, under the HIPAA definition,
> State confidentiality laws. And there are a bunch of these State laws
> that might need to be taken into account.
>
> First of all, the States regulate the practice of medicine, and they
> get very upset when people practice across State lines. A national
> records system, or nationally accessible records system, probably will
> increase cross border medicine and may well highlight that outdated,
> State‑based regulatory system, though I don\'t think on its own it\'s
> electronic record and interoperable record, national record, will
> actually involve any breaches of such State licenses system.
>
> I think more problematic may be some very discrete State,
> State-specific reporting requirements that are, for example, modeled
> on outcomes reporting, or specific adverse event reporting to come out
> of State medical record. And exactly how those State reporting laws
> would interoperate, if I may use that, with a truly interoperable
> national health record for a particular patient, I think would need
> looking at.
>
> Each State has its own records retention law. These are periods that
> certain records, and you will usually have one period of time for a
> traditional record, you might have a slightly different time for
> imaging, that physicians or institutions have to retain the records or
> images. The AMA also recommends that its physicians retain their
> records for the length of the statute of limitations that applies to
> the State in which they practice.
>
> Now, as you start going interoperable here and you have this
> difficulty as to understanding anymore exactly what is the \"record\"
> we are talking about, there may well be issues as to which State laws
> apply here. Do these record retention laws possibly apply to patient
> PHR data that is being added to the EHR and so on and so forth.
> Obviously on supplementing all of those State laws and sort of
> rotating around them, we have Federal Medicare rules that specifically
> apply, provide for a flaw with regard to records retention.
>
> Similarly, Federal regulations such as the Medicare conditions of
> participation lay claim to some regulation of the accuracy or
> timeliness of records. So also do national JHACO accreditation rules,
> and State licensure laws independently impose duties of accuracy,
> completeness, legibility and timeliness. State statutes may have
> prohibitions on the alteration of records. Yet in an interoperable
> world, they continually, continual updating and improvement of the
> patient record appears to be part of what we are trying to achieve.
>
> There is even common law, case law authority for the proposition that
> keeping inadequate records can constitute common law malpractice.
> Desperately hoping that you won\'t ask me what an inadequate record
> is. One case, for example, unreported case in this country suggests
> that it would be malpractice to use a summary record rather than a
> full record. Thus when I gave a similar presentation to Australia to
> the Health Connect folks over there who were using summary records
> this caused some dismay.
>
> Moving into the next cluster of issues that I label adoption and
> transition. I think first of all you hear the lawyer probably needs to
> add the context of the EHR, the EIHR, the EMR not acting completely in
> isolation but as part of the, sort of the general process supporting
> solutions that are currently being offered to the health industry. So
> to an extent here, I\'m stepping back a little bit and seeing EHRs and
> so on along with what I know about track and trace technologies such
> as bar coding, RFID, et cetera, and also CPOEs or the entry decision
> support systems and so on, so forth. I mean, to an extent I suppose,
> the EMR and then by extension the EIHR, will be viewed as the hub
> which all of these pieces of technology operate through and feed.
>
> And when you look at these technologies and what we already know about
> the ones that are in, that have been adopted, several scenarios
> suggest themselves. First of all, there is the potential liability for
> being an earlier doctor. We already have seen some serious issues
> detailed in the medical literature with regard to flaws, error rates
> in process supporting technologies. And so there is the question as to
> the possible exposure of the, legal exposure of the earlier doctor.
> The exact opposite also of course may be true because the legal system
> is not one to set traps.
>
> Later doctors presumably could be attacked for failing to adopt EHRs.
> Indeed there is some rumors around the place, legal system, that the
> leapfrog standards for CPOEs are already being leveraged by
> Plaintiff\'s attorneys to suggest liability on health care
> institutions.
>
> When it comes to later doctors and reasons perhaps why people won\'t
> adopt, one of the ‑‑ and this, I suppose, hurdles us back to the
> financial incentives question ‑‑ one of the question is, well,
> supposing a facility cannot afford to adopt this kind of technology?
> Generally speaking, the tort system does not allow the lack of
> resources of the defendant to be factored into the standard of care so
> that would not be a good defensive argument for a hospital. On the
> other hand, for the physician practicing in the non‑EHR equipped
> facility, the resources available to the practicing physician are
> generally taken into account in setting the standard of care, and so
> that may well appear, may well be relevant there.
>
> As you may well be aware, there is some limited evidence already of a
> correlation between institutional HIT investment and reduced mortality
> rates. There is also some correlation between well resourced
> institutions and investments in HIT. So the, we do have this very
> likely possibility that we are going to see a short vector between
> EHR, subject to incentives of course, between EHR implementation in
> some hospitals or systems as opposed to others.
>
> Complicating that slightly, we are already seeing some State laws
> mandating the use of some process supporting technologies. For
> example, California has a State statute mandating the adoption of
> CPOEs in hospitals. We are going to see other issues during this
> implementation transition phase. For example, the technology might
> work real well but the people won\'t. And you can see, following an
> adverse event, maybe a legal attack on an institution for lack of
> adequacy in training their staff.
>
> We probably will have issues, again hopefully limited in time and
> severity, during the transition process because we are likely to have
> parallel systems operating. It is likely paper and EMR will coexist
> for a short time. And as we all know, as we have made transitions from
> paper to electronic copies, even if we are just paying our bills at
> home, the question then is, well, which system takes precedence? Are
> people going to give the same amount of attention to the new EMR as
> they do to the legacy paper that is still in their office.
>
> Next I\'m pleased ‑‑ interrupt me if I\'m taking too long here. Next a
> little bit on sort of a generalized liability cluster. It is too early
> to really even speculate as to what kind of error rate we are going to
> see in electronic health records and the kinds of systems we are
> building. Computer Weekly today reported that in the last four months
> in England there have been \"110 major incidents\" with the NPfIT, NHS
> system. In the worst case, for four days in July, 80 NHS Trust ‑‑
> which for those of you who are not English ‑‑ is one of the major
> organizational structures in U.K. health care. 80 NHS Trust in England
> lost their IT systems for four days after a data center crashed in
> Southeast England.\
> \
> How would the legal system go about looking at these sort of problems,
> or likely problems, error rates with EHR systems? What kinds of
> things, other than crashes and so on? Well, in addition to the blue
> screen of EHR death that we might see, there will also be design
> problems. We are already seeing Medical Journal literature looking at
> human factors research in CPOEs, clinical decisions, support software,
> EHR software. The very difficult problem of how many screens deep will
> a user go when using an electronic version of, say, a medical record.
> And we will, we can only assume that there will be some kind of
> litigation following that, although causation may be quite difficult
> to prove the linkage between that and maybe an adverse event.
>
> In that same generalized area it is unknown as to what legal impact,
> for example, certification that ONCHIT has been pushing for and sort
> of industry standards will have in setting the legal standard for
> those kinds of pieces of software and hardware.
>
> Looking a little further into the sort of general litigation crystal
> ball, I think you can make the argument that the current U.S.
> liability default, which is that generally speaking you sue individual
> physicians rather than health care institutions. As I think the
> electronic record investment in ‑‑ HIT, that\'s going to take place at
> the institutional rather than the individual physician level so I
> think this whole enterprise will have the effect of pushing the U.S.
> legal liability system further away from individual liability to more
> of an institutional default.
>
> I think that the electronic record has the potential to increase
> medical malpractice litigation. If you believe the statistic that
> something like two‑thirds of medical errors are undiscovered in this
> country, then a fully searchable, mine able, interoperable health
> record, I think, particularly one that patients have access to is, I
> think, likely to increase the discovery rate of medical error and
> possibly therefore the litigation rate.
>
> I think there is the likelihood that because the electronic record
> will have markers for every professional who has touched the patient
> and will therefore document the timeline of diagnosis treatment
> adverse result very closely. There is the likelihood for perhaps
> additional Defendants to be added to suits. So those are sort of the
> four clusters that I wanted to bring to your attention. The one
> remaining is privacy/confidentiality/security, and perhaps I could get
> an indication as to how much time and detail you would like me to use
> on that very last point.

\>\> Judy or Alicia, I leave that up to you on that.

\>\> It\'s been about half an hour since he began his presentation. We
do have (inaudible) in the room that is only available for about more 15
minutes before he has to leave so I\'ll let you determine, Lillee.

\>\> Well, I\'ll tell you, the privacy confidentiality is a biggie, and
we even have a workgroup around that. So if we could take a few for
minutes Professor Terry. And I\'m sure we need to have some real
discussion around this so I\'m going to ask my Co‑chair for some help as
well because I really would like to hear clear discussion around these
four clusters of issues.

> John, how long do you need to talk about the EHR First Responder
> update?

\>\> Just a couple of minutes, just to give an update on status and ‑‑

\>\> Okay.

\>\> Just wanted to make sure that this working group is in the loop on
where things stand and what the next steps are.

\>\> Yes, it is very critical. Professor Terry, how much longer can you
be with us?

\>\> I\'m at your disposal, please, and if I can help the Privacy
Workgroup or anything like that then I can be, at your disposal at
another time as well.

\>\> No, I\'m thinking if we just have John go quickly rather than dive
‑‑ I want to get to this privacy/confidentiality piece and have the
Workgroup have some discussion. John, maybe you could give us a quick
update and we could go back to Professor Terry to complete his
presentation.

\>\> Sure. I apologize for interrupting the flow here, but I appreciate
your flexibility.

> I just wanted to give you a brief update on the status of the
> emergency responder use case development process. And as you will
> remember, we have a target time frame of delivery of a use case by the
> end of October for the, to meet the recommendation of the AHIC in this
> regard.
>
> We have been working to reengineer, or engineer, the use case
> development process a little bit. At the same time this is the next
> one that\'s going to come through this process. And what we are doing
> is we are actually going to produce a, what we are calling a use case
> synopsis which will be an initial, very high level layout of what the
> scope is of the use case, a little bit about the high level
> information flows and a little bit about the key roles and
> stakeholders. That use case synopsis is an effort to get some material
> out that will allow for input. And we would intend to have that to you
> all sometime next week ideally and would like to get your comments
> back. We are going to be showing that to a variety of different
> groups, but we would like your comments back by early October. And
> with the goal of then having a detailed, which is the final product
> but in the draft, a draft detailed use case available in mid October
> which we would then share and we would be happy to go through with the
> working group in greater detail. And then we would collect comments on
> that and then wrap things up with a final use case available by the
> end of October. So the sequence is use case synopsis, comments and
> input. The more detailed use case out for comments and input, and then
> a final use case by end of October.
>
> It will clearly, and we would be happy to go through the use case
> synopsis with this group. I\'m not sure what ‑‑ I think your next
> meeting is not until October sometime. So we should ‑‑ we will share
> it all electronically. There will be a, clearly expressed there how
> comments can be sent forth as well. So hopefully can all be packaged
> and shared with you electronically, and then we can talk about it in
> the October time frame as well.
>
> Are there any questions about that? I know I didn\'t give you much on
> content, but I think that\'s, the first pass is the synopsis and the
> effort there is to try to do a little base touching to make sure that
> we are on the right track with this before there is a commitment to
> the much more detailed effort.

\>\> One thing, John, I would think, and maybe some of the staff can get
you up to speed is we spent a good deal in the beginning of the call
talking about the state of our technology and the discrete data needs.
And we talked about the May 2 First Responder EHR testimonies that this
Workgroup had from the American College of Emergency Physicians. And
just want to make sure that whatever we are recommending in will our
prioritization list, based on VA and DOD experience and that testimony
we heard, is going to be consistent with any recommendations that may
come out in this use case synopsis.

\>\> So I think that this is going to be important contribution to that
effort. What we did with the other use cases was not be highly
prescriptive of the data per se. What we tried to do was define the
functionality that was necessary. I think the biosurveillance one went a
little deeper into suggested data because there was confusion around
that. But this level of content is exactly where the synopsis now, the
escape synopsis now lands. And we would be interested in hearing more
about what other input we can get on this, but it seems very can
compatible with where it is headed.

\>\> Okay. Any committee questions? John, do you have anything you would
like to ask of John Loonsk?

\>\> Appreciate the input, John.

\>\> Okay. Well, thank you for giving me an opportunity to talk and we
will get you e‑mail exchange in about a week\'s time. And then we look
forward to talking with you in a more detailed way at the next meeting
as things proceed. Thank you.

\>\> Thank you.

> Professor Terry, I would like to come back to you. And one of the
> reasons I did want to hear your comments on privacy and
> confidentiality is I Googled you in preparation for the meeting today,
> and what pops up on the Web is your testimony in front of the NCVHS
> subcommittee on privacy last year in San Francisco.

\>\> That\'s correct.

\>\> And that was quite enlightening by the way. So if we could get back
now to your comments ‑‑ I thought that the four questions of issues, as
you articulated them, was very helpful as we think through this and just
would like to hear your comments briefly on the privacy and
confidentiality issue as it relates to legal and regulatory problems.

\>\> Thank you. On the issue of that testimony, also testifying before
NCVHS subcommittee that day was a colleague of mine, Leslie Francis,
from the University of Utah. And following our testimony, although we
had not prepared joint testimony, we sat down and we wrote a *Law
Review* article, which is about to come out in the *University of
Illinois Law Review*, which gives far more detail and makes very
specific proposals as to what we think is an appropriate
privacy/confidentiality model for the interoperable health record.

> It is weighty of course, as such articles in my domain tend to be, but
> I would be delighted to make that available in its prepublication form
> to your working group if that would be of any assistance.

\>\> Probably be very helpful. And, Judy, I would think that would be
helpful to the new workgroup as well.

\>\> Absolutely. That\'s a great idea.

\>\> Okay. So perhaps you can later, maybe offline, tell me how to get
that to you.

\>\> Will do.

\>\> With regard to privacy/confidentiality/security I\'ll try to keep
things fairly sort of, you know, 50,000 feet for you at this point. But
I suppose the bottom line, when one looks at this, is that a fully
longitudinal, interoperable records model creates the perfect storm for
privacy applicants. If you look at how we have been keeping our medical
data so far, the very inefficiency that you are all battling and we are
all battling about records dramatically reduces the privacy
externalities surrounding such data. They are kept, data at the moment
is kept in filing cabinets in little individual paper silos. They tend
not to be portable, and we have very inexpensive security regimes. We
call them locked filing cabinets.

> In contrast, an EA, an interoperable EHR model is premised on the
> aggregation of these silos, common data standards and to improve
> usability and maximize the return on our EMR/EHR investments
> incredibly sophisticated data mining tool.
>
> We seem to be intending to make patient information available to all
> health care providers, some of which may only be tangentially involved
> in a patient\'s care and, therefore, we tend to render the level of
> privacy and security accorded that data a function of the weakest link
> in the system. Fully interoperable data is also immeasurably more
> valuable for secondary users and must be seen as an irresistibly
> tempting target for commercial aggregate.
>
> Now, the first stop obviously when we are looking at privacy/security
> in this world is to look at HIPAA. And my analysis is that HIPAA is
> dramatically inadequate to deal with even our current issues, let
> alone those that will be raised by the electronic interoperable health
> record.
>
> To give you a flavor of sort of the type of criticisms I make here,
> let me start by saying that maybe the greatest problem with HIPAA
> privacy is that it has absolutely nothing to do with privacy. The
> HIPAA privacy regulation is a falsely named regulation. There is
> nothing in that regulation that protects data privacy.
>
> Privacy, as a concept, involves placing limitations on the collection
> of data. There is nothing in the HIPAA so‑called privacy regulation
> that places any limitations on the collection of data.
>
> The only thing that the HIPAA privacy regulation does is make some
> tweaks to the distribution of that data. It is therefore not a privacy
> rule but a Federal confidentiality rule. It makes the tweaks to our
> existing State, statutory and State common law rules with regard to
> how data may be disseminated once it has been collected by a health
> care provider.
>
> Going further, I think you can make the argument that the HIPAA
> so‑called privacy regulation is less a listing of confidentiality
> protections and much more a list of exceptions telling health care
> providers how they can disseminate confidential information without
> control. HIPAA is a laundry list of exceptions rather that something
> that gives rights to patients.
>
> There are also very severe technical problems with HIPAA, and this is
> not HHS\'s fault. The HIPAA Act that gave HHS the power here was
> itself incredibly limited, and HSS did a really good job with what
> they had but there were limits.
>
> One of the primary limits here is that it is, the definition is
> subject to this whole idea of covet entities, and I won\'t bore you
> with all the regulatory language here. But there is some real
> questions as to, for example, whether an employer who provides a PHR
> portal for employees, let alone an independent Web site that is
> providing PHR, a PHR platform for individuals, there is a very real
> question as to whether any of those activities fall within HIPAA at
> all.
>
> There are other problems as we look at data processing. At least one
> way of looking at this is to see that these data warehouses, data
> processing, records processing is probably going to move offshore.
> Records transcription already has, tele-radiology is now, has been
> moved to a large extent offshore, and the reach of the HIPAA
> regulations to these data processes is difficult to say the least.
> Yes, there are provisions in the HIPAA regulations, and that will
> require so‑called business associates agreements, but it is not clean
> and we may run into problems with this as we go forward.
>
> Let me give you, as an illustration of some of my problems here. I
> want to tell you just about one case. It is an incredibly obscure
> case. It involves an emergency, basically the fire department in
> Chicago. And the fire department in Chicago, which runs sort of an EMT
> system and so on, was sued for employment discrimination. And in the
> course of that, the plaintiff tried to get hold of the medical records
> that were held by the fire department with regard to other employees.
> And the idea was to try and show disparity treatment. Now, I think
> most of us just hearing that would go, oh, well, it is pretty obvious
> that this is sort of, would fall under some sort of litigation
> exception or something. That was the third reason the court said why
> this data could be freely moved around. The first two are really quite
> shocking however. The fire department kept medical records on its
> employees. They had their own doctors who did examinations as to
> whether they were able to get back to work, and they also employed
> consultants and so on. So they had a big bunch of medical records in
> the building. The courts said that the fire department simply did not
> fall within the covered entity definition of HIPAA. Secondly, even if
> it was a covered entity, it was not involved in so‑called HIPAA
> transactions. You know, the HIPAA EDI, electronic commercial
> transaction.
>
> And so none of this stuff was covered by HIPAA. So you are looking at
> a relatively major public institution with a whole bunch of health
> records. And our national, our Federal privacy regulation was simply
> not applicable on at least three grounds to all of that.
>
> It is when you start seeing things like that that you start getting a
> little nervous about our current, the current level of privacy
> regulation and its likely inadequacy when we move to an electronic
> version.
>
> Now, in the article that I alluded to and in the testimony I gave
> before NCVHS, we laid out a number of recommendations for improving
> patient confidentiality and privacy in an EIHR context. And, for
> example, we made recommendations that certain information, perhaps
> genetic information, could not be collected for any purpose, or maybe
> could not be collected for anything other than a purely medical
> purpose.
>
> We also suggested that legislation would be appropriate to limit the
> access to electronic health records to those medical personnel who
> were actively involved in the circle of care involving the particular
> issue that the patient was facing at that time.
>
> There are innumerable other recommendations that I won\'t go into now
> unless specifically asked, but I get that ‑‑ that is sort of a very
> brief sketch of some of the privacy issues.

\>\> Okay. Well, Professor Terry, your testimony was quite enlightening.
Let me ask the Workgroup; are there any questions or comments pertaining
to what Professor Terry has illustrated for us today?

\>\> Sobering.

\>\> This is Jon Perlin. Let me chime in. Let me thank you, Professor
Terry, for an extraordinary overview of some of the legal regulatory
challenges, or particularly the legal challenges that electronic health
records do pose.

> You know, I guess the one thing I would be looking for, for clarity,
> is that it is a deceptively simple question. Are not the liabilities
> of the incomplete information the inadvertent, or purposeful but
> policy ambiguous sharing of information in its paper form still not
> greater in terms of some sort of cumulative liability than the
> electronic health record and, you know ‑‑ what I\'m asking for is
> validation that this is not insurmountable and that some sort of, if
> you will, legal case that our vulnerabilities today that are not only
> equally significant but potentially even more significant than this
> new endeavor of electronic health records would offer?

\>\> Well, I think there are a couple of cuts one could take at that.
When one looks at sort of the error externalities with regard to
electronic health records, what we are all hoping surely is that the
improvements in patient safety that come out of HIT will overwhelm any
of the new issues that the technologies themselves bring.

> I certainly believe that, but my brief today was to try and detail any
> disincentives or barriers that physicians or other health care
> providers may feel, or may perceive with regard to the introduction of
> this technology. And I think in the short‑term there are some genuine
> risks and additional risks they will face, even with regard to error
> externalities and that sort of cost benefit analysis.
>
> With regard to the privacy risks which I think you were primarily
> alluding to, there is no doubt that current State law says that it is
> a breach of confidence for someone to go in that paper, or the doctor
> to go into that paper record and distribute it for non-medical
> purposes. The trick when you get to the EIHR, however, is scale. An
> exponential increase in risk.
>
> When all of that data comes out of its silo and when it gets combined,
> it is a far more, the risks of disclosure, or the harm that may come
> out of the disclosure risk, even if the risk disclosure remains
> constant, the harm that may flow from that single issue, that single
> risk disclosure rises exponentially.
>
> The other issue that I think we have to face early on is all of this
> data is coveted by others who are not physicians. There is immense
> interest in getting hold of this kind of data.
>
> Now, some of it is going to come from folks in offices close to yours.
> I mean, AHRQ wants this data. And we only have nice things to say
> about AHRQ. The drug companies will want this data. Data mining
> operations who put together vast database researching, searching by
> corporations, and even our own security services will want access to
> this data.
>
> And so I think my answer to your question is, the stakes go up. Yes,
> this is not something brand new but the very ‑‑ the massive increase
> in scale, both as to the amount of data available and those who
> potentially have access to it and those who would like to have access
> to it far exceeds anything we have ever imagined or we have built
> legal and regulatory systems around so far.

\>\> Well, I appreciate your very sobering approach to this. What then
is your advice? What\'s your guidance for prudent and responsible
progress? Because I think the environment is already replete with
challenges in terms of capitalizing progress and electronic health
information. And, you know, I\'m sure as you have observed that, you
know, information risk endeavors such as health care, we operate
generally with far more primitive tools than making. So what\'s your
guidance in terms of reasonable, responsible approaches to surmounting
some of these challenges that not only present challenges but could also
be used as arguments by naysayers, folks who would prefer to maintain
the status quo? How would you suggest we approach?

\>\> Well, I think you have to minimize the potential perceptions of
harm and increase, maximize the kind of legal protections that should go
along with it. I think that HIPAA should be vastly expanded such that it
does not just apply ‑‑ and I think the Frist bill from a year or so ago
had a provision in it that would have done something in it. This says
that henceforth HIPAA does not apply just to this narrow range of health
data. It applies to health data, period the end. It doesn\'t matter who
has it or whether or not they\'re doing transactions, but we make HIPAA
truly a national protective device.

> I think we also have to reassure physicians by saying that, by
> excluding external influences by saying that, just as a matter of law,
> health care providers may not supply identified data to, for example,
> drug companies. And I think we have to reassure patients that they
> should continue to give their physicians all the information they can
> to assist with their diagnosis and treatment. I mean, reassure those
> patients by making it absolutely clear and clean as a matter of law
> that that data can only be distributed to those medical care
> professionals who are directly involved in the circle of care with
> regard to that patient.
>
> I think we have to go further and tell patients that if there is
> something they do not want generally spread around through their
> health record, if there is something that they believe to be so
> private, yet medically relevant, that they should be able to secure
> that in the record in some way. We have talked about the secure
> envelope model. Some of this comes out of the Australian experience.
> Some of it comes out of the English NSS experience. But proposing some
> kind of secure envelope that essentially, within the health record,
> you can put some very, very personal or private information with a
> sort of, you know, you write on the outside of the, this virtual
> envelope, only to be opened in the case of X, type of incident.
>
> And I think we have to give patients that kind of choice, and I think
> we have to give patients that kind of assurance as to how we are going
> to treat their data. The public opinion polls, the surveys on the
> level of distrust and concern about medical records going electronic
> suggests that the general U.S. population is already extremely
> concerned about this.

\>\> Thank you. I appreciate the very practical suggestions.

\>\> I think we are about out of time here. I just have one really
burning question, given the four issues articulated here and given the
VA DOD experience, with all of the potentials and the issues that
Professor Terry brought up, are there any of these that have been
validated or perhaps the experience in the VA DOD has not panned out in
one of these spheres? Do we know? Linda, do you know, or Colonel Harmon?

\>\> This is Bart Harmon. I\'m not personally aware of any new problems
of this sort. But the value of that statement, I\'m not certain.

\>\> It would be just good if we could have the point/counter point,
which is always helpful, but I do think that in terms of this Workgroup
making recommendations in terms of what would seem to be policy
inoperability, as well as policy and regulatory change that has to
occur, I think we have got some great food for thought here. So,
Professor Terry, thank you so much.

\>\> This is John Houston. Can I make a comment?

\>\> Please.

\>\> Being a member of NCVHS and Dr. Terry having testified before
NCVHS, one of the things we published this summer was a letter to the
secretary based upon his testimony as well as many others. And it was a
rather involved letter that described privacy/ confidentiality
considerations in the NHIN and, I think, is worthwhile reading to
understand really the scope of issues associated with privacy and the
NHIN. As a member also of the new Workgroup as formed on security,
privacy and confidentiality, that was one of the recommendations I made
to that Workgroup, too, was they really needed to read that letter to
really understand the myriad of issues that exist around this topic.

\>\> But can that be shared with this Workgroup so we have a sense of
the context?

\>\> It is actually on the NCVHS Web site now.

\>\> Okay.

\>\> And it could be downloaded and distributed to the group to, just by
going to the Web site and downloading it. So I mean whoever is
distributing materials there could easily go to that Web site and pull
down that letter. It really, I think, is a very thoughtful and, you
know, methodical letter as it relates to this topic; and again, it does
incorporate much of the testimony that we heard over a year and a half
that we took in.

\>\> That\'s great. Thank you so much.

> Let\'s move on now to our second testimony from Tom Leonard of the
> McKesson Corporation. Tom, are you with us?

\>\> I don\'t think he was going to able to join us until three.

\>\> Until three. Thank you. I\'m sitting here looking at Central
Standard Time.

\>\> And I don\'t know if Dr. Bell has been able to join us yet.
Dr. Bell, are you on? So I believe we might have to move to agenda item
6 while we wait for Dr. Bell and Tom Leonard to join us.

\>\> Okay.

> Help me here with what. Do we have any other information ‑‑ I know the
> legal regulatory piece we were drilling down into today instead of the
> technology we had included in previous Workgroup meetings. I don\'t
> have background information whatsoever in terms of financial,
> organizational, other than the issues that perhaps were in the hands
> white paper that\'s been distributed and some other pieces. What
> should we be considering here as a part of this discussion?

\>\> This is Kelly Cronin.

\>\> Hi.

\>\> Hi, how are you.

\>\> Good.

\>\> I wanted to just share a couple of thoughts that you might consider
in terms of the financial pieces to this. Over the last couple of years
both NCMS and, in this office, and really I think a lot of folks in the
private sector have been thinking a lot about how to build in incentives
for EHR adoption in pay for performance programs. And there\'s been sort
of a variety of thoughts and methodologies proposed. And while we don\'t
have an enormous evidence base yet, I think that there are some
successful performance programs that are building in different types of
incentives for EHR adoption and use. And that\'s through process
measures and what a lot of people refer to as use of IT or use, pay for
use measures.

> And in fact CMS has a demonstration program and is (indiscernible) MMA
> section 649, that will encompass this type of program across four
> States. And there\'s been a lot of other successful programs across
> the country. So it may be worthwhile to think a little bit more about,
> what are some of the opportunities in the context of pay per
> performance. And I think in particular there has not probably been
> enough of a public discussion or analysis of what are the most
> successful payment methodologies to date that actually have had a
> positive impact in the adoption and use of EHRs.

\>\> Thank you for chiming in. I\'ll tell you that at the end of the
day, this is the big ugly lion at the gate. I was just with one of our
largest health care systems last week, with their board of directors.
And as I talked about electronic health records, the state of the State
and where we need to go, there is always this, well, where are we going
to get the money to pay for this?

> There is the other side of this that is always perplexing, and that is
> the increase in efficiency, patient safety and quality that comes from
> the implementation, to Professor Terry\'s point about the enormous
> amount of inefficiency in systems. So I\'m wondering in this area, as
> we have been able to get some very enlightening testimony, who we
> could get to help us further understand this domain and then help
> craft our recommendations to the community around it.

\>\> Yes, I would be happy to work with you or Karen or whoever to try
to identify some folks. My previous position at CMS, I had worked a
little bit in this area. And even before going to CMS, in this office,
we were working on this quite a while ago.

\>\> Right.

\>\> So I think we have a good handle on who out there might be the
thought leaders and who has some real experience they could share with
us.

\>\> Other committee members, do you have any thoughts on this financial
domain?

\>\> Well, you know, this is John Tooker. I think there are quite a few
organizations that have policy, but the cost, the upfront cost is what
is usually represented but that\'s only a piece of it. And where you
have so many of these small practices that are really small businesses.
It\'s not just a cost of acquisition, it is the cost of maintenance,
sustaining their practice and transforming their practice. I think we
could certainly find testimony around that. And I think another issue
Professor Terry brought up is that, the tendency to focus on the upside
of the acquisition of electronic health records. By I think on balance,
that particularly as we push for implementation, that those who are the
most vulnerable, outside of systems, practice the downside, including
safety, security, threats to their practice, that we ought to have a
healthy dose of that as well. But I can certainly help with some names
with Kelly and you around physician groups about the costs related to
acquisition and practice.

\>\> I\'ll tell you, it really comes down to this. It comes down to this
in a big way. The organizational piece, before we prioritize on what we
want to hear next, I know at our last Workgroup meeting on August the
15th, we heard very good testimony around structural cultural barriers.
A good bit of that testimony was specific to physicians and not to
hospitals to, you know, a great degree, I don\'t believe. But I could ‑‑
am corrected for sure. But the cultural barriers to change all of the,
kind of at the sharp edge, at the front line implementation issues were
all wrapped up into this particular area.

> There are organizations that have very successfully implemented EHR,
> physician practices, acute care settings and others. And some of those
> success stories are perhaps what we really need to bring to light.
> Because we are really unable to get the return on investment. Every
> CSR that I know always says, well, if I invest here, what\'s my ROI
> going to be? Really hard to articulate in some respects.
>
> So what types of thoughts or discussion do you have around this
> organizational piece, and then let\'s see if we cannot come up with a
> prioritization for what we feed to be considering.

\>\> And, Lillee, I just wanted to let you know that I just finished my
conference and I just jumped on the line with you.

\>\> Hi.

\>\> Hi.

\>\> Waiting for you and Tom. Well, at this point, Karen, we are talking
about the four critical elements. We of course have prioritized the
state of the technology piece. We have had an outstanding presentation
from Professor Terry on legal and regulatory. We are waiting for Tom
Leonard to call in so we can hear the McKesson presentation.

\>\> And you know what, Tom Leonard is on the line.

\>\> Oh, he is. Good.

\>\> Okay. Let\'s finish this page real quick. Organizational components
that we need to consider? Or would there be a consensus that we really
need to drill into the financial piece first?

\>\> This is Jon Perlin. Basically in the public sector finances were an
issue. In the private sector finances are an issue. And it just seems
disingenuous if we don\'t put on the table the challenges in terms of
getting there without acknowledging the resources that are required and
some of the challenges with wanting incentives to realize broader
implementation of health records, president\'s calls.

\>\> I agree.

\>\> Well said.

\>\> This is Kelly Cronin again. I just wanted to also let you know that
in the past couple of years we have written up sort of several
variations of policy options papers with EHR adoption that get at a
variety of different levers that could help change the business case.
And it might be worth revisiting some of those, where we are today. And
I know, a conversation we had yesterday with the Consumer Empowerment
Workgroup, we did a similar paper for them sort of laying out what all
the potential Federal roles are that could encourage adoption. And I
think it was quite helpful for the Workgroup to just get a good handle
on what all of that could be for them to consider as they develop
recommendations. So we could just stock some of those papers if that
would be helpful to you.

\>\> I think that would be great. I have to admit to you, Kelly, I
don\'t know about anybody else, but I sure don\'t have time to read
everything that\'s out there.

\>\> Right.

\>\> And having an inventory of where we are, maybe we don\'t have to
create anything. We need to consider what has already been well
articulated and written.

> Okay. So, John, I think I hear some consensus around the financial
> domain being our next priority.
>
> So shall we move to hearing from Tom Leonard of McKesson?

\>\> Lillee, I\'m sorry to interrupt. This is John Tooker.

\>\> Hi.

\>\> I certainly agree with having the financial domain as an area for
us to tee up. But like to think of it as a little bit bigger than just
the cost of acquisition.

\>\> Oh, absolutely.

\>\> Right.

\>\> I think we did hear that. It is the cost of change in the
organization.

\>\> Right.

\>\> It will spill over into the organizational domain. No doubt about
it.

\>\> Loss of productivity initially and things like that.

\>\> Yes.

\>\> In some practice. Thank you.

\>\> Sustaining it over time, not a one‑time acquisition cost. All those
things.

\>\> Right.

\>\> Great. Good clarification.

> Tom Leonard, are you on the line?

\>\> This is Tom Leonard. I\'m on the line.

\>\> Well, welcome to the Electronic Health Records Workgroup. We are
very excited to hear your presentation around McKesson\'s thought
leadership survey. We have been contemplating of issues of physician
adoption of IT ever since this Workgroup was put into place last year.
And Pam here, who as you know is a member of this core group, and had
recommended that we have a cycle discussion with you around the survey
results. And I want to make sure we leave just a little bit of time and
make sure we talk about this so what. This was the survey, then so what,
how can we apply it and have some practical suggestions for really
dealing with some of the conundrums we deal with. So welcome to the
group. Tell us a little bit about yourself, and dive right in.

\>\> Thank you for the introduction. I understand I have about 30
minutes and that includes Q&A.

\>\> That\'s correct.

\>\> So for reference purposes, by deck, I catch, which I think will
become part of your minutes, about five ‑‑ I\'ll go move some of them
very rapidly, covering some of the survey methodology and demographics
of the survey group, to have that information for future reference but
won\'t spend much time on those. Mostly focus on that, the top line
findings, which I think Pam has sent along previously to members of this
group.

\>\> She may have ‑‑ let me just clarify, she may have sent them along,
but I\'m not sure everybody on the group has read them.

\>\> Very good. And I will cover off the bulk of those top line findings
at a high level.

\>\> Good.

\>\> Actually as a point of introduction, I\'m the general manager of
inventory solutions at McKesson. I\'ve been in that position for about a
year and a half now. Previously I was the Chief Operating Officer of
Mysis focused on emergency departments, OR and ICU, point of care,
clinical documentation for physicians and nurses. My focus at McKesson
is managing those businesses that are focused outside the four walls of
the hospital. So it is our physician office focus business. Includes
practice management and electronic medical records. It is our revenue
cycle outsourcing business which helps those same physician customers to
maximize their returns on their very complex and ever-changing
reimbursement model. It is also our home care business. Another
sometimes neglected place where care is provided for patients along that
continuum. So each of those three businesses currently report to me at
McKesson.

> Moving to the first slide which shows to date ‑‑ what I want to do is
> I have two slides of just very high level, setting the stage before I
> dig into the top line results.
>
> This is, what you see here is a view of current physician adoption of
> electronic health records that comes from MGMA\'s September 2005
> survey. You will click one more time for me, please?
>
> You will see that 96% of the buying entities, or 61% of all
> independent physicians, independent meaning not employed by a
> hospital, are in practices of 10 physicians or fewer. Another way to
> look at this is, of the roughly 550,000 actively practicing physicians
> in the U.S., the median physician practice has just two physicians in
> it. So we talk about the issue of automating physician practices. The
> real compelling question is, how do we provide an electronic medical
> record to that median practice, to the practice with only two
> physicians in it. I heard mention just before my, I was introduced,
> the issue of the financial challenges.
>
> There is another issue I think that we find very compelling as well,
> and it is technology know how. When we think about your typical
> physician practice of just two physicians, we are looking at a small
> private business that doesn\'t have a lot of technology in the office.
> Typically it\'s a single office manager, responsible for all aspects
> of running that business. And if you think about technology, you know,
> you are typically looking at an e‑mail system that is AOL or the like.
> There is not Outlook. There are not servers. So a technology purchase
> is both financially daunting, but it is also technologically daunting.
> And one way that this is materializing in the marketplace today that
> we see, even though EHR adoption is less than 10 to 15% generally
> across the marketplace, we are already seeing a somewhat active
> replacement market where practices have made ill‑advised decisions or
> failed in the implementation of an EHR, such if they are already on to
> purchasing their second EHR in several cases. So solving the financial
> burdens is one of the issues that we see, but helping to solve for the
> technology challenges that two physician practice faces is another
> hurdle we are going to have to overcome many. If you move to the next
> slide.\
> \
> Where McKesson has been focused is recognizing that in every community
> of practices of varying sizes, from a sole practitioner to large
> multi‑specialty clinics, in every one of these there is a hospital. A
> hospital that over the course of the last several decades has put
> millions of dollars of investment, implementation clinical systems ‑‑
> financial systems, also an IT infrastructure personnel, have the
> ability to manage that and to extend and leverage that investment out
> to the local physicians. This is not perhaps a model for every
> physician but have found from our hospital customers a very compelling
> model for them. They see strong benefits in leveraging their current
> investment and aligning more closely with physicians in their
> community by extending that clinical and financial investment out,
> hosting an electronic health record for the physicians in their
> community. For our survey was to gauge the interest of physicians
> aligning more closely with the hospital in that way.
>
> Next slide, please. And one more time. Thank you.
>
> So we engaged Harris Interactive to look at two things: One was to
> evaluate the interest level of physicians in leveraging a hospital\'s
> IT infrastructure to deploy an ambulatory EHR for their practice, and
> then also to validate what we heard anecdotally as hospital
> executives\' interest in deploying this ambulatory EHR for affiliated
> physicians within their community. Next slide, please.\
> \
> So just to the survey methodology, Harris has a pool, physician panel
> of about 10,000 physicians nation‑wide for this survey. Four hundred
> twenty-eight physicians were surveyed, given some margin of error of
> plus or minus about 5.5%. Next slide.
>
> From a methodology perspective as well, there were certain
> qualifications that we expected on the part of the physicians. First
> we segmented the results by both primary care and specialist. They
> needed to have been in private practice for at least two years and not
> be a physician employed by a hospital. They needed to be practicing
> full‑time and spend at least 70% of their time in direct patient care.
> And they must not have implemented an EHR at present. And from that
> pool we found that, on average, these physicians admitted to 2.5
> hospitals, had an average age of 45.5 years, had been 14.8 years in
> practice since receiving their training, see an average of 129
> patients per week, and again were 84% male and 16% female. Next slide,
> please.\
> In terms of the processes of the survey, and again I\'ll be reviewing
> just the top line summary level findings. Four areas we really wanted
> to assess. First we wanted to establish a baseline for our physicians
> and the relationship with their hospitals as it regards IT services.
> So first look at the attitude regarding the services their hospitals
> currently provide. Next we wanted to take a look at their attitude
> regarding putting an ambulatory EHR in their practice. Then we wanted
> to assess their attitude working with the hospital, with the hospital
> hosting an EHR within their practice. And lastly and more generally,
> we wanted to assess their overall attitude toward the value of an
> electronic health record. Next slide, please.\
> \
> For definition purposes, we defined an electronic health record as
> having four basic components. It needed to include ‑‑
> (indiscernible) ‑‑ documentation, electronic prescribing, orders and
> results capability and some mechanism for work flow and ‑‑
> (indiscernible) within the practice. Next slide. One more, please.
> Next slide, please. One too many. Sorry.
>
> In terms of components of value or where they saw, physicians saw
> value from connecting to their hospital and the functionality that
> they ranked in terms of most valuable, for information that their
> hospital could provide to them, first was discharge summaries. So
> summary information available from post an in‑patient encounter, the
> ability to review and sign off on patient charts, the ability to view
> lab results and incorporate those, the ability to view medical images,
> surgical notes, ability to support scheduling in the inpatient. These
> were all functionalities that physicians deemed were most valuable in
> terms of hospital hosted functionality. Next slide.
>
> As part of the process, not only did we assess the physician\'s
> attitude but we also presented the results to a panel of hospital CEOs
> to register their perspective on these top line findings and to gauge
> what their perspective was on physician comments. So what we have
> included throughout this deck are a handful of representative
> comments. I think by and large our hospital\'s CEO panels were
> surprised at physicians\' overall favorable interest in working with
> the hospital for an EHR and for this functionality.
>
> Next slide.
>
> Next area we are looking at is the attitude toward an EHR in their
> practice. Of those responded that were surveyed, 74% indicated they
> are likely to purchase an electronic health record. And next slide.
>
> And of those that said they were likely to purchase, 91% said they are
> likely to purchase an EHR within the next 36 months. Now, this is,
> this was, as an interpretation this was an interesting result, I think
> reflecting the much higher degree of awareness physicians have about
> the value of an EHR in their practice that, and where the 91%
> indicated that an EHR is in their priority list for purchase within
> the next 36 months. Next slide.\
> \
> When presented this information our CEO customers, or our CEO panel
> was generally somewhat skeptical about the actual rate of adoption
> that physicians indicated, although they seemed to feel it was
> directionally correct. I think each of them though did reflect on the
> fact that they are hearing a great deal of awareness and discussion on
> the part of the physicians in their community, about the need or the
> interest in an ambulatory EHR.
>
> When asked to rank the benefits of an EHR within their practice,
> clinical benefits for EHRs ranked far above what physicians
> anticipated the financial benefits would be of an EHR within their
> practice, with better coordination of care across care settings listed
> as a primary benefit.
>
> Now, interestingly enough, when we think about your typical EHR
> implementation, which is a stand alone EMR without much, if any
> integration across practices, one of the highest points of value that
> physicians see in getting an EHR is ability to coordinate care across
> care settings, often is not present in a standard implementation of a
> stand alone single practice electronic health record.
>
> One of the reasons McKesson is very excited about our focus on again
> leveraging our hospital, hospital customers\' IT investment and
> extending an EHR across physician practices, it allows them to share
> clinical data and achieve what is seen by physicians as one of the
> most important benefits of getting an EHR in their practice.
>
> We can see all the benefits that they identify include reducing
> redundancy of data entry, improve compliance with preventative service
> protocols, helping prevent errors in adverse events and improving
> patient safety, as ranking as top benefits that they saw from an EHR.
> Next slide.\
> \
> So we discussed the physician\'s benefit, or physician\'s perspective
> on the benefits of electronic health record. Then we want to
> understand their attitude toward working with a hospital to provide
> that EHR for their practice. Next slide.
>
> The respondents in the survey, 71% said that they were receptive, and
> this was on a sliding scale of one to seven, said they were overall
> receptive to the idea of leveraging a hospital\'s IT resources and
> their buying power to deploy an ambulatory EHR in their practice.
>
> This was also a result that didn\'t vary by primary care or by
> specialty. You have the next slide, please.\
> \
> By and large, from the physician panel, this was greeted very
> optimistically. In some cases I think there was some surprise in terms
> of the degree of receptivity to a physician\'s willingness to a
> hospital hosted EHR. But I think it was generally well received by the
> hospital executives, as you might imagine, as they look at trying to
> align more closely with physicians in their community to receive such
> a favorable result. Next slide.\
> \
> When it came down to an assessment of what the most important factors
> were in assessing and offering by the hospital support and
> maintenance, so the ability to support that application and support
> their practice with the IT, and price came out as the top two most
> important issues for physicians when looking at partnering with that
> local hospital to provide an EHR for their practice. Next slide.
>
> We also wanted to assess the attitude toward the value of an
> electronic health record within the physician\'s practice. And by
> value we wanted to look at both qualitative value and also the
> quantitative value or the price, the economic value that physicians
> assigned to an electronic health record. Next slide, please.
>
> Using a variety of means to assign a quantitative value, the net
> results from the survey was physicians felt that they would be willing
> to pay to a vendor, on average, \$550 per physician, per month, for a
> vendor, delivered vendor hosted electronic health record. And as a
> note, that is pretty close to current market value for a vendor
> delivered electronic health record, indicating, I think both a general
> awareness, visibility of current pricing in the marketplace and an
> assignment of value for this that roughly equates to current market
> price.
>
> When asked, would they be willing to pay for a hospital hosted EHR, to
> the hospital for this service, their, the average result was \$531. So
> it was slightly less than what they indicated they would be willing to
> pay to a vendor. When CEOs were presented with this data, I think the
> result was generally met with some skepticism, with anecdotal
> comments, indicating that physicians typically want things free from
> the hospital. However, I think the result really indicated it was
> directionally correct in that physicians indicated they would be
> willing to pay something less than they pay a vendor, but it was a
> nonzero number, that they certainly assigned value to having a
> hospital hosted health record and a hospital there is available to
> provide that local support to solve that technology know‑how and the
> need to provide connectivity that they cannot get otherwise.\
> \
> And as we go to the next slide. You can see some of the points of
> value that physicians saw. Key amongst them, the rapid access to
> hospital patient\'s data and the general greater availability of
> clinical data were ranked by physicians as a particular benefit.
>
> To the next slide.
>
> Most importantly, in terms of assessing the value that the physician
> ascribed to a hospital hosted EHR, the left graph shows the occurrence
> state or the impact for the physician on the relationship with the
> hospital, including up to, the referring relationship with the
> hospital based on their current IT services that the hospital provides
> for them. And then the right graph shows what physicians assessed as,
> or indicated as the interest of the impact of a hospital hosted EHR on
> their relationship with that, their local community hospital. And, you
> know, a comparison of those two graphs indicates that a hospital
> hosted EHR will have a positive, meaningful impact on that
> physician\'s relationship with the local hosting hospital. More so
> than the type of already services that hospitals currently host for
> their physicians.
>
> Next slide, please.
>
> So to summarize the top line findings, physicians generally value the
> IT services currently provided by hospitals. Have indicated an
> interest generally in implementing an ambulatory EHR over the next 3
> years. Have indicated a receptiveness to working with the local
> hospital with which they are affiliated to deploy an EHR in their
> practice. Ascribe economic value to the EHR and are willing to pay the
> hospital a market rate in order to deploy it, and believe that
> deploying a hospital\'s sponsored EHR will produce a closer alignment
> with that sponsoring hospital.
>
> This was the general top line findings. As you could imagine, there is
> a good deal more data behind this, and McKesson will be publishing
> more on the results of this survey and some of the, some of what we
> learned both in our discussions, discussions with physicians, and also
> with the CEO panel. But at this point I would like to open up to any
> questions that you may have around the survey, the comment of CEOs or
> perhaps McKesson and the role that we are playing in this market.

\>\> Jon Perlin. Let me thank you for a terrific and very informative
and in fact encouraging presentation.

> I want to start with, first question, and maybe it was on one of the
> slides. I was just interested if there was any breakdown in terms of
> the enthusiasm of the physician community in particular with respect
> to age? Were younger physicians more enthusiastic? Were you able to
> define that?

\>\> Dawn, are you on the phone? Were you able to join us? Okay.

> Our representative from Harris was supposed to be on the phone with us
> as well to dig into other cuts of the data. Doesn\'t sound as if she
> is.

\>\> Actually we do have are her on the phone.

\>\> Am I muted?

\>\> There she is.

\>\> Can you hear me?

\>\> Yes.

\>\> Hi. I don\'t know what happened, but they must have unmuted me or
something. But I\'m from Harris Interactive so helped McKesson do this
study. And the answer to the question, there is a definite breakdown in
enthusiasm between age. It didn\'t come out quite as much maybe in the
actual physicians surveyed. But we also spoke, when he is referring to
the physician panel, we spoke with 20 CEOs and presidents of various
hospitals throughout the country. And, you know, definitely the older
physicians are struggling more with this than the younger physicians
are.

> Interestingly, the youngest physicians are obviously most enthusiastic
> but hospitals are now realizing, particularly more in suburban areas,
> that they need EHR as kind of a recruiting tool to get physicians into
> their community to compete, you know, against some of the other larger
> hospitals, maybe more in the urban areas for physician retention. So
> the younger you go, the recruitment is different. So the youngest ones
> are most enthusiastic and are looking to align themselves with
> hospitals that have EHR already. And the hospitals are now starting to
> implement that just to get access to some of these physician who are
> graduating. Older physicians are resistant. Some of them are
> begrudgingly adopting. And some of them quite honestly probably won\'t
> adopt unless totally forced to readopt or will retire. That\'s just
> the nature of the beast. They are just not comfortable with computers
> or the technology. You know, when you reach that mid‑age group it
> becomes a little more competitive. So even the resistant ones, once
> they see their peers start using it, don\'t want to be physicians left
> behind. So competition amongst physicians is sort of fueling that
> group. You have some that very interested in adopting and others who
> are hesitant, needing to be dragged along but don\'t want to be left
> behind either and perceived as not keeping on the cutting‑edge.
>
> So I think you are kind of at that tipping point sort of where you are
> reaching, the adoption is going up and the talk about EHR is starting
> to increase. So that\'s why you are starting to see more physicians
> talking about adopting it.

\>\> That\'s very helpful. Much appreciated. I know that there has been
some literature that (indiscernible) had actually showed previously, an
U‑shaped adoption curve. Highest among the more senior and the most
junior and sort of most problematic among the mid career. But it is very
interesting. And it may simply have to do between the time of that, this
earlier studies and your report given that the PFC itself is now 27
years old. So if you took physicians just as a cohort under 35, and you
are talking about a group that were either born with or born, or born
shortly after the birth of the PSA. So very helpful. Let me turn it over
to questions from the report. And again, appreciate the terrific report.

\>\> This is John Tooker. I also really enjoyed that. And three quick
things. One is, can we get by e‑mail a copy of those slides? Second,
mentioned what is the quid pro quo from the hospital. And I agree that
it is free, but in real world things really aren\'t free.

> And going back to the old PHO days, the physician hospital
> organizations, when hospitals provide a lot of services, there were
> some expectations of the physician\'s relationship to the hospital.
> And related to that, there are now lots of primary care physicians who
> do not admit their own patients to the hospital but they frequently
> refer patients to one or more hospitals in a community. Sometimes
> directly to hospitals and sometimes through the subspecialty
> community. Are the hospitals considering these physicians as
> candidates for the free, if you will, EHR as well?

\>\> You are raising a bunch of very good points in there. Certainly
what we are seeing from a STARK relaxation perspective is two things.
One, the hospital can\'t discriminate in terms of who they offer this
underwritten EHR to so they cannot solely select for example high
referring affiliates, which is one of the deployment issues that we are
watching customers grapple with, is how far do I go and how much can I
afford to underwrite. So the ability to discriminate based on a referral
relationship is not permitted under the current relaxation.

> And the other point to be made is, right now it is an 85/15 split in
> that the receiving entity, the receiving practice must bear at least
> 15% of the cost of the EHR. And then the hospital is allowed to
> underwrite up to 85%. And certainly from the results we have seen, at
> least through the survey, you know, the physicians willing to pay for
> some portion of their fair share is certainly promising.
>
> So I just want to address that point relative to STARK and certainly
> some of the points of confusion or the questions that come from our
> hospital customers who say, we are interested in doing this. We don\'t
> know how far or how we control this and mitigate our cost. Because as
> you might suspect, when hospitals are looking at that affiliated
> community and hoping to draw a more closer relationship, particularly
> in a competitive marketplace where you have a number of splitters,
> physicians that refer to multiple hospitals, they see the opportunity
> to extend an EHR as part of that quid pro quo. They make it easier to
> do business with the hospital, and in turn that will likely result in
> a higher rate of referrals. And that becomes the uncontracted,
> unspoken but likely quid pro quo. They build a tighter relationship
> that improves referrals. Referrals of not just patients but of high
> margin lab and medical imaging business.

\>\> Right. Very helpful. Thank you. And can we get a copy of those
slides?

\>\> I know we shipped them. I think they become available to you, if
I\'m not mistaken. I don\'t know the mechanism whereby we send those.

\>\> Let me just ‑‑ Alicia, or anyone in the staff office, can we make
those available?

\>\> Yes. Sorry. They have, most of them have already gone out and,
sorry, must have missed you, John, but we will make sure you get it.

\>\> Thanks.

\>\> Okay. Let me ask if there are any other questions on this
presentation.

> Lillee?

\>\> I\'m back.

\>\> Okay.

\>\> Thank you.

\>\> Let me turn back to you.

\>\> I appreciate that. I believe where we are is we need Dr. Karen Bell
now to help us understand the executive order, recent executive order on
promoting quality and efficient health care in Federal Government
administrative responsive health care programs. This was an attachment
to the materials that were sent out for today\'s meeting. So, Karen,
thank you so much for joining us. I hope the weather is nice in Boston
today.

\>\> Thank you. It absolutely is. And I do apologize for the travel
before, but the conference was right next to Stadium, Fenway Park. And
if I didn\'t get out when I got out, I would never get out. That one to
30 minutes will be impossible so thank you for your patience. I\'m quiet
now and settled.

> The executive order which you have seen was released on the 22nd when
> President Bush was in Minneapolis, and I\'m really excited to
> essentially congratulate this Workgroup because it was through
> essentially your efforts and the other workgroups' efforts in coming
> forth with recommendations about, for the Federal move forward with
> standards adoption with respect to lab, as well as some of the other
> pieces that are, we are working on.
>
> And to include that in, include those recommendations in some of the
> contractual relationships that we have and other arrangements that we
> have that was the denied us in the beginning of the entire executive
> order which, as you know, includes not only encouragement for Federal
> and ‑‑ (inaudible) ‑‑ to adopt the data standards, certification
> standards, but also addresses the need for private, I\'m sorry, for
> pricing and quality transparency. Within that it addresses the need
> for quality standards as well, and I think that you are all aware of
> the fact that there is a Quality Workgroup forming. First time it is
> meeting actually is this Friday.
>
> In addition to the transparency piece and the standards piece, the
> executive order also underlines needs for incentives. Those who are
> clinicians move forward with standards around quality. And HIT, and
> for patients as well. So it really is a format that brings together
> all of the clinical components that we feel that, and the secretary in
> particular feels, are important to really move and begin to transform
> the health care system.
>
> But again the congratulations go to all of you because it was your
> hard work and recommendations that were actually the impetus for this
> larger picture.
>
> In terms of where we are going with this now, I think that as you read
> the executive order, there are some questions that it brings up in
> terms of how does one actually do this. And so on a number of
> different, in a number of different fronts we are looking at what does
> this actually mean in terms of what happens when with respect to both
> our Federal delivery systems and with respect to the arrangements that
> the Federal Government has to its contracts or other agreements with
> the private sector.
>
> So the fine line in terms of how all of this is interpreted and how it
> actually will roll out is still under discussion. But I did want to
> just call your attention to the fact that this is a very strong
> message that this administration is very serious about moving forward
> within (inaudible) health IT. Are there any questions about that?

\>\> Karen, you know, the executive order is rolling around the private
sector a bit and this gets to, you know, it\'s what Jon Perlin is always
saying. What are the practical implications. What immediately is going
to change as a result of the executive order? Because you know there is
short‑term and long‑term implications to any executive order.

\>\> M\'hmm.

\>\> But from a practical standpoint what\'s going to change quickly?

\>\> Immediately ‑‑

\>\> Yes.

\>\> ‑‑ probably nothing.

\>\> Okay.

\>\> However, it is a little bit like if we have HITSP based standards
for interoperability presented to the secretary at the October AHIC, it
will be accepted. And that will be the essentially signal to the entire
vendor community that these are critical standards. They will be going
into the EHR certification process. And the vendors have a roadmap or a
timeline that when that will happen, but it signals them that this is
serious I better get going with it.

> Same with what is happening in the Federal Government. Clearly as it
> moves forward with new and different approaches, as it adds elements,
> it will need to come into compliance with the beta standards as they
> come forth, all the time. And then thirdly, in the private sector
> there are a number of contracts, for instance, that we have with just
> ‑‑ health plans. There is a particular contracting cycle that various
> agencies have, CMS, OPM, the DOD. DOD is a 5-year contracting cycle.
> CMS is a three, and OPM is a one. So as contracting cycles come into
> effect, they will be able to plan on how they will like to move this
> forward as it roles out. There is one other area though that I think
> that the executive order will have some impact, and that is through
> the agreements that the secretary is encouraging that employers make
> to essentially align their contracts with health plans, for instance
> with the same types of approaches that the Federal Government is
> using.
>
> So that there is a consistent and concerted effort to really bring the
> entire health community along the lines of standardized approaches to
> HIT, standardized approaches to measuring quality so that there really
> is alignment all the way across the board.

\>\> Great. Any discussion for Dr. Bell around the executive order? Just
remember, last week we thought this was a very important piece for us to
be considering and the impact on our Workgroup\'s work.

\>\> If not, there is one other thing I just wanted to bring up as
well ‑‑

\>\> Please.

\>\> ‑‑ if I may. As you may remember, Lillee, Dr. Brailer, last AHIC,
mentioned the visioning process that he expects to occur. And you and I
had a conversation about that afterwards. That was just last week.

\>\> Yes.

\>\> And time frames are hard so that I think it would be appropriate
for me to just bring the topic up here today and invite anyone on the
Workgroup who would like to help in the process join us as we move
forward with this before the next Workgroup meeting.

The basic concept is that we recognize that all of the workgroups are at
different stages in terms of their focus and the immediate next steps
and project plans that they are working through. But there is a vision
of what we all believe, either collectively or individually, that we
were going with all of this and what the future looks like if in fact
interoperable information is available and clinicians work only in the
electronic environment.

> And the hope is that we would have each workgroup get to a particular
> consensus vision, and then ultimately we would look and align all of
> them across the board and use that as a way of developing the
> long‑term vision and use that as a way of establishing the milestones
> in terms of how to achieve the vision. And then it is also a way of
> double‑checking to make sure that we are addressing all of the
> barriers and enablers that we need to.
>
> So what I would like to do is just, again, open up the, to the entire
> Workgroup an option for anyone who would be interested in really
> articulating the straw man version of that, to just let us know or let
> me know or let Alicia know. And we will put together just a small one
> hour meeting to create straw man vision for our Workgroup sometime
> over the course of the next few weeks.

\>\> As you know I\'m certainly in, Karen.

\>\> I know you are. Thank you very much.

\>\> So you\'ll be joining Lillee.

\>\> Oh, you know, I don\'t know about anybody else, but I think I may
have 1 a.m. to 2 a.m. open on my calendar. You and I are frequently in
‑‑

> \[LAUGHTER\].

\>\> There must be others of you that want to participate in visioning
future ‑‑

\>\> This is Jon Perlin. I would be delighted to contribute.

\>\> Would you mind sending an e‑mail to us and allow us to respond?
That would be great.

\>\> That would be fine. Thank you. Good idea.

\>\> That is a good idea.

\>\> I can send a little bit more information in the e‑mail as well.

\>\> Thanks, Karen.

\>\> Judy and Alicia, I think if you are there in the building, I have
about ‑‑ is it 3:40 Eastern time?

\>\> That\'s correct.

\>\> Is that right? And have we completed our formal agenda components?

\>\> Lillee, can I ask one other question before we go there?

\>\> Sure. Of course.

\>\> And I apologize, this is out of order. Karen and I were at the
CCHIT meeting yesterday, and there was some discussion about the
laboratory messaging standard. And I think everybody is aware of ELINCS
and HL7. My understanding is that HITSP is going to vote tomorrow on the
standards. And I wanted, just from our group, whether I could get some
clarification because I may have missed that ‑‑ maybe that\'s when
Connie Laubenthal was on the call ‑‑ for us, but the rationale for the
recommendation for what I understand to be the HL7 standards rather than
ELINCS. Is that fair?

\>\> Might I interrupt in here for just a moment, John? It is Karen.

\>\> Yes.

\>\> Clearly the public comment period for all of the HITSP proposed
standards is open through until today. I think we recognized that it is
impossible to incorporate all of the public comments before tomorrow.
And so I believe there is ‑‑ I know John is meeting with the panel
tomorrow. But I am not sure, I think I believe that it is, there will be
a postponement of the vote at least for a period of time until all of
the public comments can come in and be incorporated.

\>\> That\'s very helpful.

> But I have got an e‑mail that our group, our EHR Lab Workgroup had
> forwarded a recommendation to HITSP to vote on one of the standards or
> vote for one of the standards or to adopt one of the standards. And I
> just want to be clear about what our process had been, and I apologize
> if I missed that when it was done and I was not here.

\>\> No, there has been no formal discussion about the HITSP standards
in our lab, or in our Workgroup at all.

\>\> Yeah. Well, that\'s extremely helpful because I read that e‑mail. I
don\'t believe that. But I\'m certainly open to asking the question in
front of everybody so that I can be proved right or wrong. That doesn\'t
bother me. I just want to be clear on what was done. And your comment
about the HITSP being able to incorporate the public comments into their
recommendations is very helpful. So thanks very much, Lillee and John. I
appreciate that.

\>\> Thanks for bringing it up, John. There was a misunderstanding. Nice
to be able to clear it up.

\>\> Right.

\>\> And I don\'t recall John and I finding any formal error to the
secretary on recommendations other than First Responder EHR and a couple
of more, but certainly not on this.

\>\> Right. Thanks.

\>\> And I do recall that our recommendation was very clear that the,
whatever HITSP standards are adopted or recommended, would also be
clearly compliant and ‑‑

\>\> That\'s very important. I do appreciate that. Thank you.

\>\> You\'re welcome.

> Shall we move to public comment now?

\>\> Yeah. Why don\'t we do that. Matt, can you bring the public in,
please?

\>\> Yes. Absolutely. There is a phone number on the Webcast right now
and instructions about what you need to do once you call in that number.
If we do have any members of the public already on the phone, you need
to simply press star one and you will be queued up to make a comment.
Right now we don\'t have anybody waiting, but we will wait a few
minutes, and I\'ll jump in if anybody gets in the queue.

\>\> Okay. Lillee, let me just remind you that the next Workgroup is
scheduled for October 13. I hate to say it, that\'s Friday the 13th.

> \[LAUGHTER\].

\>\> 1 to 4 p.m. Eastern.

\>\> And just so that I\'m clear about the take away, because I popped
in a little bit late on the call, the focus will be reimbursements for
the next Workgroup meeting. Is that correct?

\>\> The, what ‑‑

\>\> Of financing, yes. Not just reimbursement but the whole landscape
of the cost of implementation, the cost of maintenance. It is not just
‑‑

\>\> Right.

\>\> ‑‑ that whole landscape.

\>\> Got it.

\>\> Okay. Thank you very much. We will pull together, we will work with
both Lillee and Jonathan to pull together some options of how we might
move forward with that.

\>\> Great.

\>\> Hi. This is Alicia, also from the Workgroup members. If there is
any suggestions you have for potential presenters in that area that you
are aware of and your organizations, if you could forward me that
information, that would be great.

\>\> Related to that, Alicia, you know, send us an e‑mail reminder about
the suggestions for a, presenters around some of the EHRs which we
talked about today, such as the safety and financing.

\>\> Sure.

\>\> Right.

\>\> I guess we have no public comment?

\>\> Does not look like it.

\>\> Okay. Is there any other business that needs to come before the
Workgroup today?

\>\> Good meeting.

\>\> Thank you, all. Well, I would like to thank everyone. Dr. Perlin,
thank you so much for joining. I\'m glad that you are transitioning into
your new role and I look forward to continuing the Co‑chair of this
important role with you.

\>\> Lillee, thank you very much for your leadership. That really was a
very informative meeting, and many thanks to you and the office and all
participants.

\>\> And, Linda Fischetti, thank you for hanging in there with the
Veterans Administration. We really do appreciate that. To our speakers
who were just tremendous today and really informed us, thanking. And to
all of you that are there in the Meyer Switzer Building in Washington,
DC, everyone that\'s on the phone, thank you. And I just want to commend
the staff once again for their hard work. They are doing great
preparation for these meetings as always. So we look forward to seeing
you again on Friday the 13th. Bye for now. Have a great day.

\>\> Thank you.

\>\> Bye all.

\>\> Bye.