October 1, 2007

Making Noise in Illinois
By Elizabeth S. Roop
For The Record
Vol. 19 No. 20 P. 22

Illinois legislation governing the production of electronic records on request has drawn the ire of the state’s HIM leaders.

Choosing not to exercise his veto authority, Illinois Gov Rod R. Blagojevich has helped the state become the first in the nation to mandate that electronic medical records (EMRs) be produced electronically in response to an authorized release of information (ROI) request. The legislation sets the price for doing so at 50% of the current state-mandated copy fees for paper records.

The legislation has come under heavy fire from the Illinois HIMA (ILHIMA) and the Association of Health Information Outsourcing Services (AHIOS)—both of which lobbied aggressively against the bills—as well as more than 50 of the state’s hospitals and health systems.

“In my opinion, this was a jump from zero to 60 in two seconds. It is not that it is terrible legislation, it just happened too quickly,” says Steven Greenberg, RHIA, past president of the ILHIMA.

Adds ILHIMA President Christine Rys, RHIA: “There is still a lot of interpretation with the proposed bills, and hospitals will need to make some decisions. Based on the hospitals’ interpretation, [the legislation] will cost the hospitals money, either in lost revenue, additional security measures, additional labor, etc.”

Ambiguity Begets Ambiguity
The legislation was originally intended to close gaps in a 2001 law that set reimbursement rates for paper medical record copies at a maximum of 75 cents per page for the first 25 pages, 50 cents per page for pages 26 to 50, and 25 cents per page for all pages in excess of 50. It also allowed for reimbursement of up to $1.25 per page for producing records stored on microfilm and microfiche.

The 2001 law made no distinction regarding costs to reproduce records stored electronically or digitally, which is the goal of the proposed legislation. Passed by the Illinois House and Senate in July, it consists of two bills that take effect January 1, 2008:

• SB472 requires that electronic records or records retrieved from scanned or digital images be provided to the requester on a CD, DVD, or other electronic storage media, when requested, and sets the reimbursement rate at a flat 75 cents per disc or media. Facilities can also charge a handling fee of up to $20 and actual postage or shipping charges.

• HB830, which will supersede SB472, revises the reimbursement rate to 50% of the per-page charge allowed for paper records.

If the record system does not allow for the creation or transmission of an electronic or digital record, the facility or provider will be required to submit a written letter of explanation to the requester, which may be included with the paper copies if the requester chooses to order them.

“The ambiguity in the statutory language concerning release of protected health information—for example, ‘reimbursement for reasonable expenses’ [and] ‘not to exceed’—has caused significant confusion, in turn leading to compliance issues, even lawsuits,” says AHIOS Executive Vice President G. Michael Bellenghi. “Unfortunately, the amendments that ultimately were introduced not only fail to address these issues but also introduce new ones. Vague, undefined terms continue to leave the law open to interpretation, and the hospitals that AHIOS members serve are telling us that they will find the law nearly impossible to comply with.

“The law also supersedes and directly conflicts with sections in the HIPAA privacy rule regarding proper release of electronic records,” he adds. “Finally, the specified fees do not represent the training, tasks, and confidentiality required to actually produce medical records in whatever medium they are stored.”

The Illinois Trial Lawyers Association (ITLA), the primary organization lobbying on behalf of the measures, insists that the legislation does exactly what it is meant to do by eliminating the confusion over the handling of electronic records created by the existing law’s vague language.

In particular, it closes a loophole that allowed facilities to charge the higher per-page rate set for microfilm and microfiche by establishing a reimbursement rate specifically for electronic documents. It also ensures that people can obtain their record electronically if they already reside in that format.

“What occurred after the original legislation and started to get worse and worse was a tremendous abuse of the law,” says ITLA President Bruce Kohen. “As electronic technologies became more and more common and records were ordered in electronic form, providers were improperly charging patients, attorneys, and people who were requesting copies under the legislation the cost for reproducing microfilm and microfiche. That was never the intent of the law. It was an abuse of the law, and it was improper.”

The legislation will also put a stop to what proponents consider an unacceptable refusal by providers to produce electronic records in an electronic format and that the reimbursement schedule more than fairly compensates facilities for the time required to fulfill electronic record requests.

“Ultimately, you’re literally talking about taking an electronic file and having it burned onto or in some way transferred to a storage media. Clearly, that is much easier and quicker than dealing with paper copies,” says Kohen. “I can tell you that, on its face, it still seems that 50% of the per-page cost is still high without further evidence” of the actual costs incurred in fulfilling requests.

The Illinois State Medical Society (ISMS), which also supports the legislation, declined to be interviewed for this article but did issue a statement that said, in part: “The ISMS supported the combination of the two provisions and the establishment of a fee for electronic records. The proponents of the legislation discussed the measure with ISMS, and ISMS supported the changes for physician office electronic records. Hospital electronic records tend to be more complicated than physician office records and administratively more expensive to provide. ISMS appreciates that the general assembly did recognize that providing electronic records does generate a cost to physicians.”

Ignorance Is Bliss
The ILHIMA, AHIOS, and other opponents of the legislation bristle at the suggestion that they are abusing the system by failing to produce records electronically on request and the cost of doing so is just a few cents.

Many facilities have hybrid systems where records are stored in some combination of paper, electronic, and microfiche or microfilm. Even when systems are fully electronic, HIM departments are not equipped to create CDs or DVDs nor are electronic health record systems set up to create files that can be easily transferred onto an electronic media.

Those were the key points the ILHIMA and its fellow opponents tried to drive home when meeting with supporters of the legislation. They also tried to educate the other side on the process involved in fulfilling an ROI request.

According to Colleen Goethals, MS, RHIA, an ILHIMA board member who actively lobbied against the proposed legislation, the ITLA’s representative said “they were bringing this bill to level the other playing field. He said to us three times, ‘All you do is push a button.’ … They didn’t feel like they should be paying the same amount for electronic documents as they do for microfilm because they think the process is very simple. However, they don’t understand what the release of information process involves.

“Our argument is that they haven’t looked at the process, what the true costs are, and all the steps involved in ROI. How can you put a price on that if you haven’t done the analysis?” she continues. “Most systems are not sophisticated enough to produce the information on a CD or DVD. We can’t put this information onto a CD. If we could, it is just as difficult, if not more, page by page, to put it onto a CD. It’s not going to cost 75 cents; 75 cents will barely cover the cost of the CD or other media.”

Opponents also point out that providing records on a CD or DVD could potentially violate HIPAA regulations governing the release of protected information. There would be no way to guarantee the security and validity of information once that disc has left the facility’s hands, says Greenberg.

“HIM departments don’t typically have the ability to burn a CD, especially from sources of patient care information. The major reason for that is because of privacy; you don’t want people to have the ability to do that. You don’t want people to have the ability to download someone’s information,” he says.

Adds Rys: “HIPAA really talks about encryption, security, and audit trails, but once you put it on a CD, it is accessible by anybody, anywhere to duplicate or alter. On a hardcopy paper file, that is a little bit harder to do.”

A Chilling Effect
Kohen says the ITLA understands that not every facility can provide electronic copies, which is why language has been included in the legislation allowing facilities to submit a letter of explanation when they cannot fulfill the request as specified. Nor is the legislation requiring facilities to change their technology or convert paper files to electronic to comply with the law.

“It is important that the industry recognize that, obviously, we are in the electronic age and that for fairness and for everyone’s benefit, if the records are in electronic format, they should and must be produced in electronic format. There may be legitimate impediments to doing that based on the technology that exists in a particular healthcare provider’s facility. That is why the law does allow there to be exceptions made and explanations made,” says Kohen. “For a while, we will have to deal with those on a case-by-case basis. If the explanations seem fair and reasonable, they should be accepted. If it seems like they are an excuse for not following the law, then those would have to be dealt with.”

And therein lies the rub, according to the AHIOS and ILHIMA. With no guidelines for what constitutes an acceptable reason for not providing electronic records on CD or DVD, facilities that do not comply risk leaving themselves open to litigation.

As a result, many facilities will feel forced to invest in new technology to meet the electronic record requirements. In addition to that expense, they will also need to absorb the portion of complying with ROI requests that is not reimbursed—money that may wind up coming out of budgets earmarked for other information systems.

“Because the statutory language allows requesters to determine the manner in which information from electronic storage media is delivered, hospitals will either have to upgrade their healthcare information systems to deliver information electronically and deliver it at half the present statutory rate for paper copies, or they will have to explain why they cannot deliver information electronically,” says Bellenghi. “If hospitals cannot be fairly recompensed, they will lose money when providing this service. They will also face numerous legal issues, and thus costs, regarding what constitutes proper release of information procedures. Finally, because producing electronic records costs much more than the statute allows in fees, it actually discourages healthcare providers from automating their records, when so many forces—both state and federal—are working hard to encourage automation.”

The Illinois Hospital Association (IHA), whose members voiced major concerns over cost and compliance with SB472, says that while the legislation does not require hospitals to retool their records systems to comply, the potential loss of revenues even with HB830 could have a chilling effect on EMR adoption.

“One of the critical issues involved in EMR adoption is hospitals having the necessary resources/funding to implement EMR systems,” says Danny Chun, IHA’s assistant vice president of communications. “Both SB472 and HB830 would not appear to be ways of generating adequate resources/funding for EMR adoption since it’s not even clear yet that HB830 would actually cover hospitals’ costs for producing/copying EMRs. Certainly, the rate of 75 cents a disc under SB472 would not encourage EMR adoption.”

The Good Fight
The battle over the legislation’s implications appears far from over. The IHA says that even though it supports HB830, it plans to go back to the legislature if it winds up hitting their members’ bottom lines too hard.

“IHA is hopeful that the rate in HB830 will cover hospitals’ costs,” says Chun. “If it turns out not to, IHA has indicated to legislators that it may return to the legislature in the future to seek a higher rate if it learns and can show that the rate in HB830 is not adequate to cover hospitals’ true costs in producing and copying EMRs.”

The ILHIMA plans on being far more proactive in its ongoing battle. The organization has established a task force to address the security issues and analyze the true cost of producing electronic documents in response to ROI requests—information they plan to use to secure an amendment to the law.

“We haven’t had time to address these issues, and that is what we are asking for. Let us work out these issues. Let us take a look at HIPAA and relate it to Illinois law to make sure we are covering our bases on privacy and security,” says Goethals. “We want to be an advocate for our consumers, our patients, to make sure we are protecting their health information. That is what our job is, and by simply downloading [records] to a CD, I don’t feel we are doing that. Putting the cost issue aside, we need to look at the privacy and confidentiality related to protecting patient information. Regarding the cost issue, we want to do it right by performing an analysis of the ROI process to find out what the true costs are so that this is truly a reasonable fee structure in addition to addressing the privacy and security concerns.”

Adds Greenberg: “From the standpoint of ILHIMA, we are going to work to make sure we get input from the membership and input from the hospitals before we go forward with anything. That is the goal of our task force and, unlike the people who put this in place, we are going to find out what the membership wants. We’re going to make sure we are doing the right thing.”

— Elizabeth S. Roop is a Tampa, Fla.-based freelance writer specializing in healthcare and HIT.