EHR Regulation - Means or Ends?

January 10, 2011

Governments, that is to say people with a taste for politics and power, love to make regulations - but what kind? Regulate the means or regulate the ends?

Governments, that is to say people with a taste for politics and power, love to make regulations - but what kind? Regulate the means or regulate the ends? 

A century ago it didn't require a rocket scientist to figure out that food and medications needed controls; the public was demonstrably being harmed every day by contaminated food and tainted, unlabeled concoctions. It shouldn't have required Upton Sinclair and public outrage to motivate the politicians to regulate food production and drug labeling; eventually Congress got to it and thankfully they focused on the objective - safe food and medicine. I classify this sort of regulation primarily as regulation of ends. A particular outcome is desired and, having determined what that is, many of the details of how the result is achieved are often left to the discretion of the regulated party.

Other regulations emphasize the means. The ends tend to be theoretical, abstract or idealistic. In spite of weak or absent objective criteria for judging success, detailed policies and procedures dictate precisely how things are supposed to be done. Local government and Department of Defense procurement regulations typify regulation of the means. The easiest way to spot this sort of regulation is to observe that when a procurement or a project fails, everyone involved can say truthfully: "I did exactly what the regulations required of me. Can I help it if the project failed?"

There are two other examples of regulation of the means that deserve mention. One is the regulations that require that the U.S. produce ethanol from corn. The hypothetical end is "energy independence" but the means are very specific. It turns out that, depending on which expert you consult, producing corn ethanol as a fuel either consumes more energy than it produces or it gives, at most, a 10 percent net yield. It has however, led to a dramatic increase in the worldwide price of corn and the cost of food.

The last example is (you guessed it!) the scheme to coerce physicians into using Electronic Health Records in their practices, but only if they meet arbitrary sets of functional specifications and without requirement that they improve either healthcare quality or practitioner efficiency.

I refer you to the following two items.

• Dr. William G. Wilkoff writes in a recent Pediatric News (I will paraphrase):
We had worked out a homegrown EHR that we have used for the past 10 years. We recently purchased a replacement from one of the large (presumably "certified") vendors. We've been using the new system for 4 months and I've worked very hard to get good at it. "However, even at the top of my game, it takes me at least 3 minutes longer to complete an encounter…than it did using our old system." He continues "We are spending nearly an hour a day more [per doctor] charting" or if we can afford it, we are seeing fewer patients.

•Dr. Michael Kirsch writes in a Cleveland Plain Dealer editorial ("Are electronic medical records a health care cure or a disease?") He concludes: "Is this technology the antidote for a relationship [the doctor-patient relationship] that needs more attention and healing? I doubt it. It is another 'advancement' forced upon us that will come at the expense of something that really matters. Will EMR come to mean the End of Medical Rapport?"

Which is more important to you? Means or ends?