Legislature to take another look at digital medical records

A revolution in digital technology is changing how we interact in everyday life. With a mouse click, you can send digital photos to someone thousands of miles away. The same is true for music, business reports and videos.

So it should come as no surprise that there is a parallel move among physicians and other health professionals to digitize medical records, a change that proponents say portends a trend toward better diagnoses and a reduction in health care costs.

Like much of the nation, New Mexico is home to the shift, with the state estimating that 10 percent to 15 percent of the state’s 4,000 physicians already use electronic records. And in all likelihood the number will increase, particularly with President-elect Barack Obama’s talk of codifying the trend, proponents say. Obama has tied the idea of electronic medical records to his economic recovery plan.

But with changes in how medicine is practiced, there are also unresolved questions, in particular as they relate to privacy, says Bob Mayer, the chief information officer at the New Mexico Department of Health.

And Mayer and others hope that state lawmakers will pass a law during the upcoming legislative session to plug what he says are gaps in privacy protection. It’s not an easy sell, as supporters found out in 2008 when they twice pushed for the bill but were denied.

“What we were trying to do is fill those gaps to protect the consumer,” says Sen.-elect Peter Wirth, D-Santa Fe, who sponsored a bill in the regular and special 2008 legislative sessions when he was in the House.

Most medical records fall under the federal Health Insurance Portability and Accountability Act, a Clinton-era law outlining a consumer’s privacy rights in regard to medical information. It establishes who does and does not have access to your medical records.

But as more and more records are digitized in New Mexico and across the country, there is a debate among professionals and policy makers whether HIPAA covers all the newly digitized information. For example, Mayer says, Microsoft is storing protected medical information, and Microsoft is not a covered entity under HIPPA.

“Right now we have electronic medical records in the state. We have nothing on the books to lay out how those things should be managed,” says Mayer. “What we and many other states have begun to do is look at building privacy protections into state laws.”

The 2008 versions of the bill would have extended to electronic records the privacy protections in the federal law that already apply to paper medical records. The bills also would have created an audit log to ensure that authorities could track how an inadvertent disclosure of a consumer’s medical records occurred, Wirth says.

Under the proposal, the audit log would have shown the identity of the person who accessed the information as well as the identity of the person whose information was obtained and the date that the disclosure occurred.

It also would have filled those gaps in privacy protection as technology has outstripped the legal framework, Wirth says.

While supporters say a transition to electronic records would save money over the long term, opponents, including some physicians, have argued that the transition to electronic records would be costly, requiring physicians to spring for programs that run into the tens of thousands of dollars.

Beyond the debate over money, proponents of digitized medical records predict that the use of electronic records over the long term will lead to more evidence-based care because digital records are more interactive than paper records. For example, the New York Times notes in a recent article: “A paper record is a passive, historical document. An electronic health record can be a vibrant tool that reminds and advises doctors.”

The Times goes on:

“It can hold information on a patient’s visits, treatments and conditions, going back years, even decades. It can be summoned with a mouse click, not hidden in a file drawer in a remote location and thus useless in medical emergencies.”

Despite its failure twice in 2008, the electronic medical records act has come close to passage.

After dying in the 2008 regular session, a similar piece of legislation came close to clearing the Legislature during the August special session. The House and Senate each passed separate electronic medical record bills. They both went to a conference committee –- a group of lawmakers impaneled to reconcile differences between House and Senate versions of the competing bills. The conference committee agreed to changes. The House passed the conference committee report, but the Senate did not, meaning the bill was left stranded, Wirth says.

Of course, just because legislation has come close before doesn’t guarantee passage. Legislatures, it has been said, are better at killing legislation than producing it. A quick survey of past legislative sessions reveals that the New Mexico Legislature –- like state legislatures elsewhere — is a graveyard where most legislation goes to die.

The last 60-day session, in 2007, produced more than 3,000 bills, including memorials and resolutions, but only 368 were signed by the governor and enacted into law, according to the Legislative Council Service.

Likewise, the 30-day 2008 regular session produced nearly 1,500 bills when factoring in resolutions and memorials, but fewer than 100 were signed and enacted into law by Gov. Bill Richardson.