Because of many emerging “after entry” benefits, federal and state governments, insurance companies, and medical institutions are heavily promoting the adoption of Electronic Medical Records (“EMR”). For example, the HITECH Act (American Recovery and Reinvestment Act of 2009) includes both incentives and penalties in its calculations to encourage adoption of electronic records, versus continued use of paper records. The Act allows benefits of up to $44K per physician under Medicare or up to $65K over six years under Medicaid for adoption of electronic records. Additionally, Congress decreased Medicare/Medicaid reimbursements to doctors who fail to use electronic medical records by 2015 for covered patients.
This change in medical record keeping and changes in the laws and regulations associated with electronic medical record keeping are creating significant changes in what and how information may become evidence in litigation.
To understand where and how EMR systems “transmit” and “maintain” Protected Health Information (“PHI”), it is helpful to use the terminology of computer experts. From their viewpoint, HIPAA’s PHI is Electronically Stored Information (“ESI”).
Electronic Storage Devices capable of storing ESI can be classified into two main categories – Non-Volatile Electronic Storage Devices and Volatile Electronic Storage Devices.
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