This past May, Tom and I gave a presentation on discovery in the Electronic Medical Records (EMR or EHR—used synonymously, though technically they are not) in which we discussed some of the issues EMR presents in the discovery phase of litigation that were previously never an issue during those halcyon days of paper records that so neatly fit in a three-ring notebook. The presentation focussed largely on the impact of EMR on the discovery process, but in researching the presentation, Tom and I noted something we thought was odd: virtually none of the research we are doing involved long term care facilities. Our talk was designed to focus primarily on hospital records—and in the future we will no doubt write much more on the issues that arise with EMR and some of the ways that with a little patience, EMR can be a source of previously unknowable information—but we both have done a lot of nursing home work and realized that we had never really come across even a rudimentary EMR system in one of our nursing home cases. Why? And who cares?
The “why” is perhaps a more difficult question to answer than the “who cares.” We should all care. While just about everyone has a complaint about EMR—a disdain universally embraced by health care providers, defense attorneys, and plaintiffs’ attorneys alike—when understood, EMR can be actually be a beneficial to everyone. In addition to the benefits of the administration of health care—uniformity, legibility, accessibility, transportability, functionality, etc.—it can also shed light on circumstances when things have gone wrong. The metadata—the data which forms the data seen by the end user in EMR—is available and discoverable in lawsuits. But such information and benefits associated with EMR are not available to patients when a provider, such as long term care facilities, do not implement the systems. EMR provides benefits to patient care and allows for the accessibility of more information about such care.
So where is EMR in long term care facilities? One of the major reasons long term care facilities have been slow to implement EMR is that the financial incentives that exist for implementation in hospitals and physician offices are not equal to the incentives for long term care providers. Almost all long term care facilities are “for profit” and EMR systems are expensive. Irrespective of the potential benefits to residents, if it’s not cost effective, these companies are not likely to implement the systems. I will not bore you (or at least bore you further) with a lengthy explanation of HITECH (Health Information and Technology for Economic and Clinical Health Act), but among the many things the legislation does is provide incentives to health care providers to adopt EMR systems that have a “meaningful use.” In 2011 there was optimism that such incentives would lead to a higher level of adoption in the long term care setting. However, there was a concern by some that the incentives in HITECH for long term care facilities would be ineffective given how far behind these types of facilities already were in terms of implementing any type of technology into their record keeping. And the fact is, at this point, nursing home facilities are not eligible for such incentives and thus despite the adoption of EMR in more acute care settings, the rate of adoption in long term care facilities continues to drag behind. Despite the myriad benefits for patient care, in the absence of financial incentives, the adoption of EMR is “dismally” low.
Other proposed issues existing for long term care facilities not faced by their acute care brethren in implementing EMR include “differences in clinical processes and information needs lack of staff, leadership and organizational skills and capacity to acquire, implement and use technology; and lack of awareness of and need for interoperable HIE [Health Information Exchange] solutions.” While such difference may exist, the viability of such differences to justify the glacial adoption of EMR by long term care facilities strikes me as dubious in light of the benefits EMR affords in patient care. The fact is, the slower long term care facilities are to adopt EMR—and one of the reasons suggested for why long term care facilities have been so slow to this point is because of a pre-existing dearth of technology employed by such institutions—the further behind they will fall in providing patient care and the harder (and more expensive!) it would seem implementing EMR will be. EMR is here to stay and while implementation is not cheap, clearly it’s not money for nothin’.-Ryan
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