Tuesday, March 8, 2011

What MPL Issues are Associated with Meaningful Use (MU)?

Any transition of patient clinical records presents potential problems and issues that could affect medical professional liability (MPL).  Attainment of Meaningful Use is no different.

The Meaningful Use (MU) Criteria frames the use of a Certified EHR that enables a practice to qualify for the Medicare and Medicaid incentive payments.  Eligible Providers must fulfill 15 Core Measures and 5 of 10 Menu Set Measures to attain MU (For a complete list, go to https://www.cms.gov/EHRIncentivePrograms/Downloads/EP-MU-TOC-Core-and-MenuSet-Objectives.pdf ).  Many measures are associated with level of use based on a defined way of counting eligibility and usage.  For example, clinical summaries are to be provided for 50% of all office visits within 3 days of the visit to meet the clinical summary measure.

Your MU strategy should consider several MPL issues:

Selecting MU Menu Set Measures - The interaction of the MU Measures and how practices meet the measures as well as which optional Menu Set Measures they choose to implement could impact MPL.  For example, potentially simple Menu Set Measures such as patient lists ((Menu Set Measure 3) may be used in place of a patient service item such as reminding patients about treatment plans (Menu Set Measure 4) or providing electronic access to their medical record (Menu Set Measure 5.)  From a risk mitigation standpoint, the patient list does little to enhance patient service and interactions on patient care issues.  However, the reminder and electronic access to patient medical records clearly demonstrate a more active patient care strategy. Health care organizations should be careful about the implications of choosing Menu Items that appear easy, but may contribute little to patient care.

Implementation Sequence – Healthcare organizations need to carefully evaluate how they approach implementation of EHR and MU.  There are significant relationships between various MU Measures and critical path issues to consider.  Indeed, MU includes a number of potential exposure problems.  For example, computerized provider order entry for medication orders (MU Core Measure 1) is separate from an optional (MU Menu Set Measure 7) MU Measure to reconcile patient current medications.  In the event of a drug interaction issue, the physician may need to explain why the reconciliation of patient medications was not chosen as one of the MU menu options.

MU Rollout and Timeframe – According to the Stage 1 MU standards, an eligible provider only needs to attain and maintain the MU Measure until Stage 2 Measures are applied in 2013.  However, will MPL issues be measured by the same standard for a patient that was not included in the EHR but the provider met the MU Measure threshold?  For example, suppose an MPL issue could have been avoided and/or mitigated if the MU standards had been applied to that patient.  The exposure of an eligible provider may even depend on the implementation strategy.  For example, many practices start EHR implementation with new patients that have no paper charts.  Thereby a patient with a long standing chronic problem may be at the end of the EHR transition.  Such a patient may not receive patient reminders since they are not included in the EHR of the practice even though the eligible provider was within the MU thresholds.

Product Design – EHR product design and how MU Measures are satisfied can affect MPL risk.  For example, a practice may generate a Clinical Summary, but support other MU standards through additional work.  Indeed, some EHRs require the entry of the treatment plans in the clinical note and a separate entry on an order tool to produce a patient reminder (MU Menu Set Measure 4).  In this situation, the design of the EHR product could meet the MU criteria, but expose the practice to MPL since the order must be recorded once for each MU Measure.  In the event of an error, the failure to follow the MU Measure may undermine the defense of a failure to communicate the treatment plan to the patient.

The following MPL risk mitigation strategies should be considered:

Develop an MU Strategy – Healthcare organizations need to develop a strategy to meet the MU Measures that addresses the critical path issues associated with MU.  For example, the Clinical Summary MU Core Measure includes information that is derived from other MU Measures as well as information that is only within the Clinical Summary Measure.  All test results and orders are included in the clinical summary, but lab test results are a separate MU Measure.  Failure to consider the critical path issues could lead to wasted effort, and misleading representations as well as complicate MPL investigations.  Additional information on a MU fulfillment strategy can be viewed at our blog article on how you can attain Meaningful Use.

Quickly Move to Complete Use – Providers should move to complete use as soon as possible.  In addition to the logistic issues associated with dealing with patients that are in the EHR while other patients are not, healthcare organizations and practices may be hard pressed to explain differences in patient service, and patient management tools in an MPL situation.  For example, a provider may be challenged on why certain classes of patients had access to treatment education resources while other patients were not given information specific to their situation under the MU Measures.

The dramatic move to EHRs driven by the MU Measures and the incentives to meet MU is driving an increasingly rapid move to EHRs.  However, the move from existing paper charts and first generation EHR products to Certified EHRs must be built around the MU Measures in a way that does not increase MPL or confusion among patients and doctors.

(c) Sterling Solutions, Ltd., 2011

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