State Legislation of EHRs: A Sweeping Precedent?

Over the last several years, the majority of legislative actions regarding electronic health records (EHRs) have concerned the Federal government’s Meaningful Use incentive program. During that time, many users and non-users of EHRs have been understandably frustrated with having to meet a narrow deadline in order not to be penalized a percentage of their Medicare income. While at the state level EHRs have historically not garnered very much legislative attention, last year the Massachusetts legislature passed a law mandating that all practitioners within the state be operational with an EHR. Failing to meet this standard could result in the state revoking a physician’s license to practice.

Details of the Law

In August 2012, the Massachusetts legislature passed Chapter 224 of the Acts of 2012 in an effort to further improve healthcare and reduce healthcare costs in the Commonwealth. The relevant section of the bill reads as follows:

“The board shall require, as a standard of eligibility for licensure, that applicants demonstrate proficiency in the use of computerized physician order entry, e-prescribing, electronic health records and other forms of health information technology, as determined by the board. As used in this section, proficiency, at a minimum shall mean that applicants demonstrate the skills to comply with the ‘meaningful use’ requirements, as set forth in 45 C.F.R. Part 170.”

The law states that as of January 1, 2015, all physicians in Massachusetts will need to demonstrate Meaningful Use of Electronic Health Records systems as a condition of licensure. Thus, any physicians who apply for a new license or apply to renew their licenses on or after January 1, 2015 must be able to attest to their having achieved Meaningful Use of EHRs. If they cannot attest to achieving Meaningful Use through initial license application or license renewal, they will not be granted a license or renewal within the state.

Implications

As it currently stands, the Massachusetts law represents the most sweeping legislation on the use of EHRs to date. Since a majority of hospitals and institutions already have EHR systems in place, the law will not affect many dermatologists on the institutional side of practice, but many private practitioners could potentially be forced into retirement or relocation if they are not Meaningful Users of EHRs. At this time, it remains uncertain what eventual impact the law might have on individual practitioners within the state. It is certainly possible that groups and individuals may lobby to either repeal or alter the legislation. It is not uncommon in state governments for several exclusions and other technicalities to be added to laws after they are passed. But no matter what happens within the next 15 months, the bill’s passage alone is particularly concerning. Even if implementation is delayed by several months or even a year, the effect will be profound simply because the law, at its core, represents the clearest and most severe government mandate to practice medicine a certain way.

Of note, the law seems to have made very few waves on the national healthcare news wires. That reactions have not been particularly strong is curious for several reasons. While the impact of the law on the state of Massachusetts and its healthcare systems could be massive, the legislation may also serve as a model for other states and perhaps also the Federal government to take similar action, particularly in light of how easily this measure seems to have passed.

Right to Practice

It’s fair to assume that 10 years from now, most physicians in the US will be using some form of EHR. The end game may indeed be better for everybody, but if the last decade is any indication, the nationwide implementation will continue to be rocky. The Massachusetts legislation, though seemingly a blip on the national healthcare radar, could represent a watershed moment in the regulatory narrative of Healthcare Information Technology.

In terms of the specific law, at this point the hope is that before January 2015, a list of exclusions will be implemented that will exempt certain individuals from the law, such as physicians in solo or group practice that don’t have any idea the law is even on the books. In the broader view, however, the quick passage of the law may prompt other state and possibly federal legislators to follow suit, which could spell trying times for physicians in the years ahead.

Mark Kaufmann, MD is co-chair of the Dermatology workgroup for CCHIT. He is on the Medical Advisory Board of Modernizing Medicine.