EHRs and the Law: When Interoperability Isn't a Choice

First off, I’m no legal expert, but recently I had an interesting conversation with the director of HIT at Texas Medical Association, which represents more than 47,000 physicians in the state. I scheduled the call because we wanted to learn more about (and hopefully help them with) the hurdles smaller, clinic-based physicians are encountering when trying to switch EHR vendors, be it to meet Meaningful Use Stage 2 data exchange requirements or to simply move to a vendor that delivers a better product.

Aside from the typical implementation and “Go Live” process, these physicians are facing unplanned fees of another sort in the form of data conversion from the old EHR to the new EHR. One doctor was quoted $12,000 to migrate nine months’ of EHR data – a hefty price to pay for making a bad EHR choice nine months ago. That cost, combined with the price of the new EHR, is simply too expensive for primary care physicians who already invested in an over-hyped and poorly-developed EHR product. If not for Meaningful Use requirements, these costs would have me skeptical of the report in Black Book Rankings that claims 2013 may be the “year of the great EHR vendor switch.”

EHR databases contain much more information than what can be contained in a CCD or Consolidated CDA document, they contain everything such as patient notes, email exchanges, dictation audio files, images, etc., so using an HL7 interface feed wouldn’t suffice to transmit or migrate this amount of data.

Why doesn’t the physician simply point the new EHR implementation team to the server where all the data is stored? Aside from the data mapping complexity of moving data from one database to another, there is the problem of actually getting ones’ hands on the data. In most of these cases, the EHR vendors are more affordable cloud/SaaS hosted solutions. So, the data is wherever the vendor put it.

But, there’s more.

(Note: This is not intended to be an indictment of hosted EHRs. Many operate with an honest, customer-centered approach.)

The “other” issue that came up during the call added an unexpected twist: the law. According to state law, which I’m told can vary between states, most physicians must keep or have access to patient data for seven years after their last encounter with the patient. Requirements for pediatricians are even stricter — they must keep patient data until the patient turns 21.

What happens when a physician quits paying their monthly EHR subscription fees and are locked out of the system? Through these laws, is the government forcing these physicians to either continue paying shoddy EHR vendors and/or pay exorbitant data migration fees? What if the cloud-based EHR vendor goes out of business?

Like I said above, I’m no legal expert so I asked health care attorney David Harlow about this issue. In addition to his legal work, David writes for and manages HealthBlawg, which I read regularly and highly recommend. This is his response: