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Epic Wins Labor Dispute in Closely Divided Supreme Court Decision

May 21, 2018
by Mark Hagland
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Epic Systems Corporation won a major labor-law ruling in the Supreme Court on Monday, centering around the extent of corporations’ right to force employees to sign arbitration agreements

The Verona, Wisconsin-based Epic Systems Corporation prevailed on Monday in a major labor-law ruling in the United States Supreme Court. As Katelyn Ferral wrote in The Capital Times, the main daily newspaper in Madison, Wisconsin (Epic’s headquarters are located in a suburb of Madison) wrote, “The U.S. Supreme Court on Monday affirmed that corporations have the right to force employees to sign agreements barring them from settling workplace disputes in court, both individually and in groups. The case, at which Verona’s Epic Systems is one of several companies at the center, was decided by 5-4 with Justice Neil Gorsuch authoring the majority opinion. Justices John Roberts, Anthony Kennedy, Samuel Alito and Clarence Thomas concurred.”

The Capital Times article quoted Justice Gorsuch as stating in the majority’s ruling that “The policy may be debatable but the law is clear: Congress has instructed that arbitration agreements like those before us must be enforced as written.” Meanwhile, The Cap Times noted, “Justice Ruth Bader Ginsburg authored the dissenting opinion and delivered it from the bench, calling the majority opinion ‘egregiously wrong.’ She was joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.” Justice Ginsburg wrote that “The inevitable result of today’s decision will be the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers.”

Further, The Capital Times article noted, “The majority opinion drew strong rebukes from labor leaders who said it rolls back workers' rights, significantly limiting workers' recourse in workplace disputes and fortifies the power of corporations over their employees. In addition, they said the ruling is an affirmation for thousands of companies that require employees to sign agreements that force them to settle disputes outside of court.”

Meanwhile, Adam Liptak wrote in The New York Times that “Brian T. Fitzpatrick, a law professor at Vanderbilt University who studies arbitrations and class actions, said the ruling was unsurprising in light of earlier Supreme Court decisions. Justice Gorsuch, he added, ‘appears to have put his cards on the table as firmly in favor of allowing class actions to be stamped out through arbitration agreements.’ As a result, Professor Fitzpatrick said ‘it is only a matter of time until the most powerful device to hold corporations accountable for their misdeeds is lost altogether.’ But Gregory F. Jacob, a lawyer with O’Melveny & Myers in Washington, said the decision would have a limited impact, as many employers already use the contested arbitration clauses. ‘This decision thus will not see a huge increase in the use of such provisions,’ he said, ‘but it does protect employers’ settled expectations and avoids placing our nation’s job providers under the threat of additional burdensome litigation drain.’”

Liptak wrote that “The case was the court’s latest attempt to determine how far companies can go in insisting that disputes be resolved in individual arbitrations rather than in court. The Supreme Court ruled in earlier cases that companies doing business with consumers may require arbitration and forbid class actions in their contracts, which are often of the take-it-or-leave-it variety. The question for the justices in the new cases is whether the same principles apply to employment contracts. In both settings, the challenged contracts require that disputes be raised through the informal mechanism of arbitration rather than in court and that claims be brought one by one. That makes it hard to pursue minor claims that affect many people, whether in class actions or in mass arbitrations.”

As The Capital Times article noted, “The case deals with the wage complaint of Jacob Lewis, a former Epic technical writer. Lewis sued the company in federal court arguing Epic had violated federal and Wisconsin laws by unlawfully depriving him and other technical writers of overtime pay. Lewis sued Epic after he, along with other writers, was forced to sign such an agreement which would bar him from taking any complaints over his pay or hours to court. Instead, the agreement mandated that Lewis and other employees settle disputes individually, in internal hearings with the company. The case was brought before the court with cases from two other corporations that dealt with the same legal issue: National Labor Relations Board v. Murphy Oil USA and Ernst & Young LLP v. Morris.”

 

 

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Study: Many U.S. Hospitals won’t Reach HIMSS Stage 7 Until 2035

August 14, 2018
by Rajiv Leventhal
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Unless the healthcare IT ecosystem experiences major policy changes or leaps in technological capabilities, many hospitals will not reach Stage 7 of HIMSS Analytics’ Electronic Medical Record Adoption Model (EMRAM) until 2035, according to new research.

The study, published in the August edition of the Journal of Medical Internet Research, analyzed Healthcare Information and Management Systems Society (HIMSS) Analytics’ EMRAM data from 2006 to 2014.

HIMSS Analytics is the research arm of the Healthcare Information and Management Systems Society (HIMSS). HIMSS Analytics developed the EMRAM in 2005 as a methodology for evaluating the progress and impact of electronic medical records on health systems around the world. Tracking their progress in completing eight stages (0-7), hospitals can review the implementation and utilization of information and technology applications culminating with Stage 7, which represents an advanced electronic patient record environment. Other Stage 7 requirements include: leveraging an external HIE (health information exchange); use of a data warehouse; and having robust data analytics functions.

The researchers of this study noted that the meaningful use (MU) program has promoted electronic health record (EHR) adoption among U.S. hospitals. And while studies have shown that EHR adoption has been slower than desired in certain types of hospitals; generally, the overall adoption rate has increased among hospitals.

However, the researchers continued, these studies have neither evaluated the adoption of advanced functionalities of electronic health records (beyond meaningful use,) nor forecasted EHR maturation over an extended period in a holistic fashion. “Additional research is needed to prospectively assess U.S. hospitals’ electronic health record technology adoption and advancement patterns,” the researchers stated.

The HIMSS EMRAM data set was used to track historic uptakes of various EHR functionalities considered critical to improving healthcare quality and efficiency in hospitals. A technology diffusion model was then used to predict the technological diffusion rates for repeated EHR adoptions where upgrades undergo rapid technological improvements. The forecast used EMRAM data from 2006 to 2014 to estimate adoption levels to the year 2035.

In 2014, more than 5,400 hospitals completed HIMSS’ annual EMRAM survey (86 percent of total U.S. hospitals). Back in 2006, the majority of the U.S. hospitals were in EMRAM Stages 0, 1, and 2. But by 2014, most hospitals had achieved Stages 3, 4, and 5, the study noted.

The researchers found that in 2006, the first year of observation, peaks of Stages 0 and 1 were shown as EHR adoption precedes HIMSS’ EMRAM. By 2007, Stage 2 reached its peak. Stage 3 reached its full height by 2011, while Stage 4 peaked by 2014. This forecast indicates that Stage 5 should peak by 2019 and Stage 6 by 2026, according to the data revealed in the study.

The researchers noted, “Although this forecast extends to the year 2035, no peak was readily observed for Stage 7. Overall, most hospitals will achieve Stages 5, 6, or 7 of EMRAM by 2020; however, a considerable number of hospitals will not achieve Stage 7 by 2035.” They concluded, “These results indicate that U.S. hospitals are decades away from fully implementing sophisticated decision support applications and interoperability functionalities in electronic health records as defined by EMRAM’s Stage 7.”

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HHS OIG Fines eClinicalWorks $132,500 For Violating Corporate Integrity Agreement

August 1, 2018
by Heather Landi
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The Health and Human Services (HHS) Office of Inspector General (OIG) fined electronic health record (EHR) vendor eClinicalWorks $132,500 for failing to report patient safety issues to the regulatory body as reportable events in a timely manner.

According to the OIG website, eClinicalWorks paid the fine July 18. The EHR vendor is required to report these patient safety issues to OIG as part of its corporate integrity agreement (CIA) with the agency.

eClinicalWorks entered into a CIA back in May 2017 as part of a settlement with the U.S. Department of Justice to resolve a False Claims lawsuit. According to the DOJ’s case, the company allegedly violated federal law by misrepresenting the capabilities of its software and for allegedly paying kickbacks to certain customers in exchange for promoting its product, according to the U.S. Department of Justice. As part of that settlement, eClinicalWorks also paid a $155 million settlement over the allegations.

The five-year CIA requires, among other things, that the company retain an Independent Software Quality Oversight Organization to assess eClinicalWorks’ software quality control systems and provide written semi-annual reports to OIG documenting its reviews and recommendations. The company must provide prompt notice to its customers of any safety related issues and maintain on its customer portal a comprehensive list of such issues and any steps users should take to mitigate potential patient safety risks.

Further, the agreement also requires eClinicalWorks to allow customers to obtain updated versions of their software free of charge and to give customers the option to transfer their data to another EHR software provider, without penalties or service charges. The vendor must also retain an Independent Review Organization to review its arrangements with healthcare providers to ensure compliance with the Anti-Kickback Statute.

 

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Survey: Physicians Cite EHRs as Biggest Contributor to Burnout

July 31, 2018
by Heather Landi
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A recent survey on physician burnout and stress found that, perhaps unsurprisingly, physicians cited electronic health records (EHRs) as the top factor contributing to stress, followed by dealing with payers and pre-authorization and then regulatory compliance.

Reaction Data, a market research firm focused on the healthcare and life sciences industries, surveyed 254 physicians across the country in a wide variety of specialties about what factors contribute to physician burnout. Twenty-one percent of respondents cited EHRs, followed by payers/pre-authorization (19 percent), regulatory compliance (18 percent) and internal bureaucracy (17 percent). And, these factors all have a common theme: they are time consuming and prevent the physician from providing care for the patient.

Other burnout factors cited by respondents included work/life balance (11 percent) and malpractice risk (6 percent).

Patients, not surprisingly, were only mentioned by 2 percent as causing an undue burden. The survey report cites one orthopedic surgeon who commented, “Our current healthcare non-system needs to be radically changed. Way too expensive and chaotic. Profit must be eliminated.”

Across different specialties, EHRs were consistently cited as a top burnout factor, although, surgeons and physician leadership cited payers/pre-authorization as a bigger burden (22 percent and 24 percent, respectively) than EHRs (20 percent).

When asked how EHRs could be improved to reduce the burden, one-third of respondents (34 percent) cited improving user-friendliness. According to the survey report, one pediatrician suggested that EHR vendors “Create one by and for physicians, not administrators and technogeeks.”

Another respondent, an orthopedic surgeon, commented, “Develop a better and more user friendly EMR. It shouldn’t take 20 minutes to do something that dictation takes three minutes.”

Seventeen percent of respondents would like to see vendors add dictation and scribe features to EHRs, 13 percent would like to spend less time documenting in the system, and 9 percent suggested replacing or getting rid of EHRs. Other suggestions to reduce EHR stress included reducing clicks (7 percent), more physician input (7 percent), focus on patient outcomes (6 percent), improve interoperability (4 percent) and additional training (3 percent).

Overall, the survey results indicate that physicians want an easier system with dictation features that reduces the time required in the system. “They want more face to face time with the patient, rather than staring at a monitor and a keyboard,” the report authors noted.

“The nurses and medical assistants need to be able to put more of the data into the EHR, permitting the doctor to spend more time with the patient,” one gastroenterologist and survey respondent said.

The survey results also indicate that EHR stress appears to know no brand name loyalty. Of those who said EHRs are one of their main causes of stress, 39 percent are using Epic, 18 percent use Cerner, 11 percent use Allscripts and the remaining respondents use athenahealth, Meditech, NextGen, eClinicalWorks and GE.

One respondent, an emergency medicine physician, commented, “EHR seems to be predominantly a billing tool, secondarily a compliance tool. Start over and design EHR for patient care. Too many boxes to click, too many irrelevant alerts, soft or hard ‘stops’ (best practice alerts in Epic), create alert fatigue. Very little useful clinical decision support.”

Physicians also cite regulatory burdens as a contributing factor to burnout and stress. Thirty-seven percent of respondents would like to see fewer rules, 32 percent would like to see more simplification and 15 percent said more physician input was needed.

According to the report, one chief medical officer recommended shifting reporting to an automated system that retrieves data from the EMR rather than manual reporting. A CMIO added, “Get rid of what seems to be unnecessary regs that don’t contribute to patient care or quality of care.”

 

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