Dr. Sam 3/14/12

Mandating Physician EHR-Related Policies

It seems apparent that the problem of physician adoption of electronic health record (EHR) technologies, with which the industry has struggled for more than a decade, is finally lessening as digital technology continues its relentless infiltration into our everyday lives, and as the percentage of hospitals implementing EHR systems increases -spurred on by Meaningful Use financial incentives. Nonetheless, hospitals are still faced with residual challenges, including the creation of policies pertaining to their EHRs.

Creating policy is one thing. Medical staff compliance is something else.

So what does a hospital do when a physician or group of physicians refuses to use their EHR, attend training sessions, or comply with specific EHR-related policies?

If you have read any of my past commentaries, you must know that I am a history buff and enjoy intertwining historical episodes where they seem to apply to challenges of today.

In the case of mandating, President John Tyler comes to mind — mainly because he mandated that he would become president when it was not clear that he had the constitutional right to do so. I guess the analogy lies in creating a position of power and acting on it in a consistent fashion to establish precedent – or in his case, president.

John Tyler was William Henry Harrison’s vice president and was facing in a precarious position when Harrison died just one month into his term in 1841. There had never before been a presidential death in office and the Constitution was not of much help as to what should happen next. The wording within the Constitution is ambiguous, for it reads that, “in case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President.”

This could be interpreted to mean that the vice president’s powers remain ”the same” or that the vice president shall assume “the same” powers as the president had – in which case Tyler would become president.

Tyler was not a very popular man. After Harrison’s death, he was addressed as the “Vice President Acting as President” by his political opponents. He, however, referred to himself as President Tyler, and refused to open any mail addressed to “Acting President Tyler”.

At his first cabinet meeting, cabinet members insisted that he obtain their consensus before he acted. He informed them that he was the President, and if they didn’t like it, they could resign. Shortly thereafter, after a particularly unpopular veto by Tyler, all but two of them did exactly that. Through a long succession of political maneuvers — including virtually daring opponents to try to impeach him — he firmly established his hold on the presidential office, serving from 1841 to 1845.

Because of Tyler’s actions, the ascension to the presidency by the vice president in case of death or incapacitation of the president became standard procedure. There was still no requirement of a disabled president to hand over the reigns of government. This did not become law until the passage of the 25th Amendment to the Constitution in 1967 following the death of President John Kennedy.

Tyler just made it happen.

In the absence of likelihood that a constitutional amendment will come to the rescue of hospitals seeking to establish mandates related to their EHRs, what steps can be taken to stimulate physician recognition of hospital authority?

Step one is consistency in establishing policies – and all policies should be expressed with the entire C-level team on the same wavelength leaving no room for divide and conquer.

Realistically, it should first be accepted that most clinicians have little interest in hospital finances and are much more concerned with their own workflow issues, which are often appropriately viewed in their minds as intimately and directly related to patient safety. Herein lies the big ace up the collective sleeve of the medical staff – and the basis upon which many a shutdown has occurred or been threatened.

It’s difficult to keep an EHR up and running when the medical staff claims that it is impeding their ability to assure the safety of their patients. A medical staff will usually live with workflow impediments, although rarely silently, since most are accepting of the probability that features and functions of the system that are slowing them down can eventually be resolved through a vendor enhancement request process. But they will not live with what they view as imposed workflows that impact their ability to provide safe care — or more importantly, what they view to be safe care.

Therefore, one very important policy procedure to have in place is an effective enhancement request process. Clinicians must know that their suggestions for improvements in the EHR they are using are being heard, responded to, documented, and included in enhancement requests submitted to the vendor on a regularly scheduled basis.

The importance of policy and structure to the enhancement request policy cannot be sufficiently stressed. Nothing creates havoc more efficiently than a cacophony of complaints and suggestions from a large number of doctors directed in a steady stream at a varying number of administrative hospital executives during a complicated implementation process. This may even be further complicated by physicians who communicate directly with vendor sales representatives or even vendor executives to deliver their complaints and suggestions or demands.

The solution to this particular issue lies in an effective governance structure that establishes a clear path by which enhancement requests are evaluated by clinical peers and submitted for approval by a steering committee which is solely responsible for communicating with the vendor. Policy is spelled out to the clinicians and included with the terms to be signed by the clinician at the time they are certified for use of the EHR upon completion of required training.

Such a policy brings clarity and an understanding that a path exists to assure attention to physician issues. It reduces the risk of widespread simmering dissatisfaction, which can be toxic to any implementation process.

Educating the medical staff about Meaningful Use requirements that impact the hospital’s ability to meet these criteria is also very helpful. This understanding should reduce complaints about steps that were previously not part of their workflow, such as using history and physical examination formats that allow for the capture of specific data points, or having to include a diagnostic indicator with a study requisition if such indicators are not automatically included by the EHR in use.

But what to do when policies are not adhered to? This is the stuff that causes sleepless nights for many a C-level hospital executive.

Don’t pull a John Tyler yet!

"Mandating" policy has challenges specific to the institution’s business structure. It is much easier for a hospital that employs all of its medical staff or an academic institution to create policies which must be adhered to as a requirement for continued employment, than it is for a community-based hospital with a volunteer medical staff over which they have less control. Many hospitals have a combination of arrangements with employed physicians or groups (hospitalists, radiologists, pathologists, emergency doctors) and a volunteer staff.

Even mandating policy to employed physicians can be very difficult. It’s easy to write a policy that requires an employed doctor to follow certain procedures, but firing someone is a huge step that brands that person’s professional reputation for a lifetime. Legal consequences may ensue, and the human resources department had better have all of their ducks in line before any such move. Additionally, rural and remote hospitals may be faced with finding replacement services, which might be challenging.

The first place to start is with the hospital bylaws. Careful legal review and appropriate verbiage should be included to place the hospital on solid ground for the imposition of policy mandates and consequences of failure to comply. Included in this process is a clear outlining of credentials of individuals who fall under the category of "providers" of care using an EHR. By including these specifications in the hospital bylaws, individual policies can be created with simple reference to the bylaws without spelling out the affected caregivers impacted by each policy.

Begin the mandating process with something palatable, understandable, and reasonable to the medical staff. For example, an initial mandate that 50% of all orders must be by computerized order entry is a heavy hand applied at the onset to a staff not accustomed to being dictated to. A reaction may reasonably be expected.

However, a mandate that passwords may not be shared under any circumstances is entirely reasonable and understandable. It is a good starting point and establishes an understanding that the hospital is prepared to take a firm stance with future rules to follow. Consequences of failure to comply should be clear and uniformly followed through on without exception. For example: share your password once and you’ll receive a warning letter. Share it twice and you’re off staff.

Such a mandate is reasonable and even expected under the same arguments applied to an EHR that clinicians find cumbersome — possible patient safety and medical legal consequences.

Some creativity may be required if a hospital does not wish to impact the career of an employed, noncompliant physician who refuses to follow required procedures such as attending training sessions or using CPOE. Failure to comply could mean loss of remote access to the EHR as a consequence. Remote access can be reinstated when the physician is trained, credentialed, or has entered a predetermined percentage of orders by CPOE over a designated period of time.

Another creative approach is to deny a noncompliant employed physician from taking emergency call. One might expect such a "penalty" to be received with glee, but the physician’s department head may not be too happy with rearranging a call schedule, or worse yet, having to take call personally to cover the ”penalized” physician. It’s more than likely that the noncompliant doctor will soon receive a dictate from above.

I am always surprised by how rarely community hospitals take advantage if their most reliable ally – the community that they serve. When a community is educated about CPOE, for instance, CPOE becomes an expectation and patients may begin to select physicians who are using technology that reduces the risk of errors.

Just as John Tyler lined up his ducks in finding support to bolster his position, the community being served may become a powerful ally. One creative approach to physician compliance in a community hospital setting is to simply periodically publish a list of physicians in the community who are helping the hospital assure patient safety by using the hospital EHR. A sample heading might read: "XYZ Hospital System is pleased to acknowledge and thank the following physicians who have displayed their dedication to the safety of our patients and high quality of care to which we are dedicated by using our state-of-art electronic health record system"

Not too many community physicians will want to be missing from that list.

There may be similar value obtained by issuing an appropriately worded certificate of EHR credentialing or thanks to a community physician to hang in his waiting room. The doctor’s patients may feel added security with their doctor, and the doctor will have another set of credentials in place if he or she ever decides to explore a second career in medical informatics — in which case they can be the ones dealing with non-compliance, mandates, and creative approaches to their refractory colleagues.

Lest this commentary appears to be one-sided, I should add that I fully understand the frustrations of my physician colleagues who are themselves beleaguered by falling reimbursements, ever-increasing regulation, and medical-legal vulnerability. Frustrations abound for all parties involved.

This is where I enjoy bringing up my favorite metaphor, a lesson that I learned during my years of travel with professional musicians.

Any professional band realizes that the goal is not for the “killer” guitar player to get out front and blast away in order to leave the crowd in awe so that they leave thinking, “What a great guitar player!” Real professionals know that the goal is to make everyone else in the band look good so the crowd leaves thinking, “What a great band!”

We’re all struggling with the sheet music we have been handed. The trick will be to make great music together.

Samuel R. Bierstock, MD, BSEE is the founder and president of Champions in Healthcare, LLC, a strategic consulting firm specializing in clinical information system implementation and healthcare IT business strategies.