Walking the federalist tightrope: A national policy of state experimentation for health information technology

Columbia Law Review

Volumn 108, Issue 7, 2008, Pages 1670-1717

  Beaton, Benjamin J ^a  

^a NONE

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EID: 57549090407     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (404)

1. Tommy G. Thompson Sc David J. Brailer, The Decade of Health Information Technology, at a-b (2004), available at http://www.hhs.gov/healthit/documents/ hitframe work.pdf (on file with the Columbia Law Review).
2. See, e.g., Bill Frist & Hillary Clinton, How to Heal Health Care, Wash. Post, Aug. 25, 2004, at A17 ("[W]e both agree that in a new system, innovations stimulated by information technology will improve care, lower costs, improve quality and empower consumers.");
3. Neil Rouda, Plan Is Big News, but the Full Story Is Yet to Come, Healthcare IT News, Aug. 1, 2004, at http://www.healthcareitnews.com/story.cms? id=1363 (on file with the Columbia Law Review) ("In Washington, everyone joined the bandwagon.... In an age of controversy, healthcare IT had become, truly, as American as motherhood and apple pie.").
4. See infra Part IIA. Though he cannot claim responsibility for much, if any, such leadership, the author was involved in Kentucky's HIT efforts during 2005 and 2006.
5. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
6. Some scholars allow the former option (nationalization) to obscure the latter (state replication). See David J. Barron, Fighting Federalism with Federalism, 74 Fordham L. Rev. 2081, 2109 (2006) (claiming Brandeis's metaphor is "only intelligible if state experiments are "adopted ultimately as a national rule"). Yet the difference remains salient. Compare the George W. Bush Administration's imposition of state-developed programs on all states, Dale Krane, The Middle Tier in American Federalism: State Government Policy Activism During the Bush Presidency, 37 Publius 453, 459 (2007) (identifying Georgia's welfare and Texas's education programs as models for Bush Administration policies), with the 1995 Republican Congress's support for devolution and state flexibility, Contract with America 66-67 (Ed Gillespie & Bob Schellhas eds., 1994) (expressing support for state discretion in welfare policy).
7. Cf. Richard W. Garnett, The New Federalism, the Spending Power, and Federal Criminal Law, 89 Cornell L. Rev. 1, 17 (2003) (contrasting pre-1789 sovereignty-based justifications for federalism with contemporary functional arguments, including experimentation). Note also Brandeis's description of state experimentation as "one of the... incidents," rather than purposes or cornerstones, of federalism.
8. New State Ice, 285 U.S. at 311 (Brandeis, J., dissenting).
9. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 458 (1990) ("Th[e] federalist structure of joint sovereigns... allows for more innovation and experimentation in government...."); Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1, 9 (1988) (listing important national policies initially developed by states).
10. New State Ice, 285 U.S. at 311 (Brandeis, J., dissenting).
11. RAND, Health Information Technology: Can HIT Lower Costs and Improve Quality? 3 (2005), available at http://www.rand.org/pubs/research-briefs/2005/ RAND-RB9136.pdf (on file with the Columbia Law Review) (noting risk of costly conversion of nonstandard systems after piecemeal implementation).
12. Indeed, the risk of such obsolescence is one reason for continued reluctance, by both private parties and communities, to invest in HIT. See infra notes 65, 172-173 and accompanying text.
13. See generally Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267 (1998).
14. The United States spent $6,401 per person on healthcare in 2005, compared to the OECD average of $2,759. Health at a Glance 2007: OECD Indicators § 5.1 (2007). This amounts to 15.3% of U.S. GDP, versus the OECD average of 9%. Id. § 5.2.
15. See generally Inst, of Med., To Err is Human 26 (Linda T. Kohn et al. eds., 2000) (estimating 44,000 to 98,000 U.S. deaths annually due to preventable medical errors);
16. Richard Hillestad et al., Can Electronic Medical Record Systems Transform Health Care? Potential Health Benefits, Savings, and Costs, 24 Health Aff. 1103, 1103 (2005) (noting higher U.S. premature mortality relative to OECD average).
17. See generally Kaiser Comm'n on Medicaid and the Uninsured, Kaiser Family Found., The Uninsured: A Primer 1 (2007), available at http://kff.org/uninsured/ upload/7451-03.pdf (on file with the Columbia Law Review) (reporting 46.5 million Americans lacked health insurance in 2006).
18. Seventy-three percent of Americans say the healthcare system is in "crisis" or "has major problems," while twenty-six percent feel it has "minor" or "no problems." Gallup, Healthcare System, at http://www.gallup.com/poll/4708/Healthcare-System.aspx (last visited Sept. 26, 2008) (on file with the Columbia Law Review) (reporting results of Nov. 11-14, 2007 polling).
19. William M. Sage, Legislating Delivery System Reform, 26 Health Aff. 1553, 1555 (2007) ("American medicine remains the world's most expensive cottage industry, resisting all efforts to achieve efficient scale and scope if they suggest government or corporate control.").
20. Both presidential candidates and many major interest groups support national investment in HIT. See John McCain, Straight Talk on Health System Reform, at http://ww.johnmccain.com/Informing/Issues/19ba2f1c-c03f-4ac2-8cd5- 5cf2edb527cf.htm (last visited Sept. 26, 2008) (on file with the Columbia Law Review) (endorsing increased use of HIT);
21. Barack Obama, Healthcare, at http://www.barackobama.com/issues/healthcare (last visited Sept. 26, 2008) (on file with the Columbia Law Review) (pledging $50 billion federal investment in HIT) ;
22. see also Press Release, AARP, Business Roundtable and SEIU Deliver Endorsed Health IT Principles to Congress (June 13, 2007), available at http://www.aarp.org/research/press-center/presscurrentnews/health-it-principles. html (on file with the Columbia Law Review) (announcing each group's support for HIT legislation).
23. Bill Gates, Moving into the Digital Decade, Bus. Times (Singapore), Oct. 25, 2001, at 19.
24. See Steve Northrup, Health Policy Dir., U.S. Senate Comm. on Health, Educ., Labor and Pensions, Remarks at the National Health Policy Congress 2006, Congressional Staff Plenary 15 (Feb. 7, 2006), at http://www.kaisernetwork.org/ health-cast/uploaded-files/020706-nhpc%20-agenda-transcript.pdf (on file with the Columbia Law Review);
25. see also Richard Alvarez, Can. Health Infoway, Special Informational Supplement, Globe and Mail, Nov. 30, 2007, at 3, available at http://www.theglobeandmail.com/partners/free/infoway/pdf/canadainfoway-report. pdf (on file with the Columbia Law Review) (observing ability to withdraw money and manage bank account anywhere in world, but not give local physician access to personal medical data).
26. Over eighty percent of patient encounters occur widhout access to pertinent laboratory or radiological data, generally because results are not yet available. Julia Adler-Milstein et al., The State of Regional Health Information Organizations: Current Activities and Financing, 27 Health Aff. w60, w67-68 (2008), at http://content.healthaffairs.org/cgi/reprint/27/1/w60 (on file with the Columbia Law Review).
27. See Clayton M. Christensen et al., Will Disruptive Innovations Cure Health Care?, Harv. Bus. Rev., Sept-Oct 2000, at 102, 103-08 (noting primary care physicians must "churn patients at an alarming rate" to maintain their incomes, reducing "the quality and convenience of care").
28. Cf. HHS, A High-Stakes Puzzle, at http://www.hhs.gov/healthit/ experiences5. html (last visited Sept. 26, 2008) (on file with the Columbia Law Review) (describing patient's frustration with accumulating medical records and repetitive testing as undiagnosed symptoms required her to visit several doctors).
29. Inst, of Med., supra note 13, at 26.
30. Joy M. Grossman et al., Physicians' Experiences Using Commercial E-Prescribing Systems, 26 Health Aff. w393, w400 (2007), at http://content. healthaffairs.org/cgi/reprint/hlthaff.26.3.w393 (on file with the Columbia Law Review).
31. David C. Classen et al., Adverse Drug Events in Hospitalized Patients, 277 JAMA 301, 304 (1997).
32. See Thompson & Brailer, supra note 1, at 3 (listing studies showing reduction in lab orders when electronic health records are used).
33. Arizona Health-e Connection Roadmap: Briefing Paper 8 (2005), available at http://www.azgita.gov/tech-news/2005/ehealth/Briefing.pdf (on file with the Columbia Law Review) (citing Federal Telemedicine Update (2004)).
34. See generally Thompson & Brailer, supra note 1, at 5 (arguing electronic records have potential to improve current security and privacy protections).
35. An ER doctor confronts both "known unknowns," where he is aware of the possibility of an allergy or medication interaction but must decide whether to administer treatment without the benefit of such knowledge, and "unknown unknowns," where he has no idea the patient has a condition such as hemophilia and cannot account for it in the treatment decision. Cf. Donald Rumsfeld, Sec'y of Def., Department of Defense News Briefing (Feb. 12, 2002), available at http://www.defenselink.mil/transcripts/transcript. aspx?transcriptid=2636 (on file with the Columbia Law Review) ("[A] s we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns - the ones we don't know we don't know.").
36. For a rare exception, see Connecting for Health, Achieving Electronic Connectivity in Healthcare 53-54 (2004), at http://www.connectingforhealth.org/ resources/cfh-aech-roadmap-072004.pdf (on file with the Columbia Law Review) (describing prevention of life-threatening medical error at HIT-equipped Indianapolis ER, where physician was alerted to patient's previous head trauma that would have been exacerbated by normal treatment).
37. See Thompson Sc Brailer, supra note 1, at 2 (recognizing "critical role of HIT in making health care safer and more efficient by enabling complete, accurate, and timely information at the point of care").
38. Rainu Kaushal et al., The Costs of a National Health Information Network, 143 Annals of Internal Med. 165, 166 (2005) ("[A national network] must have 2 components: the ability to perform key functions, such as computerized physician order entry (CPOE), and interoperability, such as linking providers for the purpose of data exchange."). Other elements should doubtless be available as well, including secure clinical messaging between clinicians and patients, online insurance claims processing, remote monitoring of chronic conditions, patient reminders, and access to providers' cost and quality data. See Thompson & Brailer, supra note 1, at 2, 4, 22.
39. I distinguish EMRs from more sophisticated electronic health record (EHR) systems, which imply interoperability between clinical settings. See Nicolas P. Terry & Leslie P. Francis, Ensuring the Privacy and Confidentiality of Electronic Health Records, 2007 U. 111. L. Rev. 681, 683 ("[W]ithin the offices of individual providers... they are known as electronic medical records (EMRs), and... when such records are linked across multiple providers... they are known as electronic health records (EHRs).").
40. See, e.g., Joel Kupersmith et al., Advancing Evidence-Based Care for Diabetes: Lessons From the Veterans Health Administration, 26 Health Aff. w156, w160 (2007), at http://content.healthaffairs.org/cgi/content/full/26/2/w156 (on file with the Columbia Law Review) (describing benefits of access to longitudinal patient data with diabetes).
41. Id. at w158.
42. See id. at w162 (discussing VA's targeted interventions for patients with inadequate blood pressure control, and physician reminders regarding regular preventive services).
43. See, e.g., id. at w164 (describing efforts to integrate patient-specific data and current clinical best practices). But see id. at w163-64 (noting signal overload and other human constraints limit effectiveness of electronic reminders for physicians).
44. See Hillestad et al., supra note 13, at 1104, 1108 (estimating transcription-related savings). "Computerized physician order entry" ensures accurate data recording and increases information available to physicians at the point of care. David W. Bates et al., Effect of Computerized Physician Order Entry and a Team Intervention on Prevention of Serious Medication Errors, 280 JAMA 1311, 1311-16 (1998).
45. John Glaser, The Advent of RHIO 2.0, J. Healthcare Info. Mgmt., Summer 2007, at 7, 7. Since healh data resides in many different offices, the data exchange system will need to search and retrieve data from several clinical settings before a complete record reaches the treating physician.
46. Thompson & Brailer, supra note 1, at 16 (observing that widespread adoption of noninteroperable EMRs could actually hinder data exchange).
47. Hillestad et al., supra note 13, at 1103. Translating technological capabilities into transformative clinical practices like "prevention and management of chronic disease could eventually double [the $81 billion annual savings]." Id. These figures, though not characterized as the "best-case scenario," were only "predictions of... what could happen " Id. at 1104.
48. Jan Walker et al., The Value of Health Care Information Exchange and Interoperability, 24 Health Aff. w5-10, w5-15 tbl.3 (2005), at http://contenthealthaffairs.org/cgi/reprint/hlthaff.w5.10 (on file with the Columbia Law Review).
49. See Cong. Budget Office, Evidence on the Costs and Benefits of Health Information Technology 8-10 (2008), available at http://www.cbo.gov/doc.cfm? index= 9168 (on file with the Columbia Law Review) [hereinafter CBO] (noting shortcomings of studies discussed in Hillestad et al., supra note 13, and Walker et al., supra note 41);
50. Jaan Sidorov, It Ain't Necessarily So: The Electronic Health Record and the Unlikely Prospect of Reducing Health Care Costs, 25 Health Aff. 1079, 1079-83 (2006) (arguing HIT's purported efficiencies may actually increase healthcare spending).
51. CBO, supra note 42, at 8.
52. See id. at 3 (noting HIT's ability to spur cost savings in conjunction with broader reforms, though HIT alone "is generally not sufficient to produce significant cost savings");
53. Sidorov, supra note 42, at 1083 (arguing HIT is necessary but not sufficient component of savings-generating reforms) ; Health IT Is a Foundation for Reform, Senators Are Told, Gov't Health IT, Feb. 14, 2008, at http://www.govhealthit.com/online/news/350216-1. html (on file with the Columbia Law Review) (reporting consensus of experts that meaningful healthcare reform depends on HIT).
54. See CBO, supra note 42, at 7 (identifying "internal savings" that flow from improved provider efficiency).
55. Hillestad et al., supra note 13, at 1109-12.
56. Id. at 1107.
57. CBO, supra note 42, at 7.
58. Dinah Wisenberg Brin, E-Prescribing May Grow as Industry Makes a Push, Wall St. J., June 27, 2007, at B5A.
59. Nancy Ferris, Medicare Bill Rewards Providers for E-Prescribing, Gov't Health IT, July 10, 2008, at http://www.govhealthit.com/online/news/350459-1. html (on file with the Columbia Law Review).
60. Hillestad et al., supra note 13, at 1109. But see E-Prescribing Study Reveals More Benefits, Healthcare IT News, Dec. 2007, at 15, 15, available at http://www.nxtbook.com/nxtbooks/medtech/hitn1207/index.php (on file with the Columbia Law Review) (reporting eleven percent increase in prescriptions filled after adoption of e-prescribing, due to decrease in "prescription leakage" (prescriptions written but not filled), suggesting initial cost increase even though long-term costs should fall).
61. See, e.g., Kupersmith et al., supra note 33, at w164 (describing VA's My HealthEVet personal health record initiative to provide veterans with online access to their health records and "support greater communication between [Veterans Health Administration] patients and their providers").
62. Hillestad et al., supra note 13, at 1110. An Indianapolis regional health exchange increased compliance with recommended care interventions from twenty-two to forty-six percent through automated reminders alone.
63. J. Marc Overhage et al., A Randomized Trial of "Corollary Orders" to Prevent Errors of Omission, 4 J. Am. Med. Informatics Ass'n 364, 364 (1997).
64. See, e.g., Kupersmith et al., supra note 33, at w163 ("In-home monitoring devices [used by the Veterans Health Administration] can collect vital data for high-risk patients from the home and transmit those data to a care coordinator who can make early interventions that might prevent the need for institutional intervention."). Such prevention and monitoring of chronic conditions could save as much as $147 billion annually.
65. Hillestad et al., supra note 13, at 1112-13.
66. Paul C. Tang & David Lansky, The Missing Link: Bridging the Patient-Provider Health Information Gap, 24 Health Aff. 1290, 1291-93 (2005).
67. Bruce Taylor Seeman, This is a Frightening Situation, Seattle Times, Sept. 13, 2005, at A3.
68. Id.
69. Melissa Harris, Bill Backs Digitizing Medical Records, Balt Sun, Mar. 17, 2006, at 1G (reporting complete health records were available electronically at any VA facility after Katrina). For an excellent discussion of improvements in quality and value withhin the Veterans Health Administration - driven in large part by the adoption of HIT - see Phillip Longman, The Best Care Anywhere, Wash. Monthly, Jan.-Feb. 2005, at 39, 39-48.
70. As of late 2007, only four percent of physicians used an extensive EMR system. Catherine DesRoches et al., Electronic Health Records in Ambulatory Care - A National Survey of Physicians, 359 New Eng. J. Med. 50, 50 (2008). An additional thirteen percent used a basic EMR system. Id.
71. Cf. Adler-Milstein et al., supra note 20, at w63-64 (finding, even widhin select group of exchange efforts, only thirty-eight percent of organizations actively exchanged clinical data).
72. Cf. Thomas R. McLean, Telemedicine and the Commoditization of Medical Services, 10 DePaul J. Health Care L. 131, 157-61 (2007) (discussing possible disruptive effects of telemedicine on U.S. physician demand);
73. Christensen et al., supra note 21, at 105-06 (noting "disruptive innovations" often allow less-skilled workers to perform tasks formerly reserved to expensive specialists).
74. Cf. Aaron Saiger, Legislating Accountability: Standards, Sanctions, and School District Reform, 46 Wm. Sc Mary L. Rev. 1655, 1686-88 (2005) (noting bureaucratic resistance to change and leaders' investment in failed programs in school reform context).
75. See Richard Pizzi, Experts Urge Docs to Adopt Healthcare IT, Healthcare IT News, Dec. 2007, at 15, 16, available at http://www.nxtbook.com/nxtbooks/ medtech/hitn1207/#/0 (on file with the Columbia Law Review) [hereinafter Pizzi, Experts] ("'The hidden cost... is the amount of time you're going to have to spend changing your practice as a result of implementing [HIT].... You will be inefficient initially as a result of the change.'" (quoting William Bria, M.D., Chief Med. Info. Officer, Shriners Hosps. for Children)).
76. See Shaun T. Alfreds et al., Ctr. for Health Policy Research, Univ. of Mass. Med. Sch., Establishing a Foundation for Medicaid's Role in the Adoption of Health Information Technology 13 (2007), available at http://www.oig.hhs.gov/ oei/reports/oei-02-06-00270.pdf (on file with the Columbia Law Review) (reporting Utah claims processing system eliminated twelve Medicaid positions);
77. Toby Jackson, Fear Over Job Losses Could Slow Automation Within the Healthcare Sector, Med. News Today, Dec. 7, 2004, at http://www. medicalnewstoday.com/articles/17437.php (on file with the Columbia Law Review) (reporting consultant's opinion that some employee objections to HIT "could mask more fundamental concerns.... Health workers may fear that automation will result in the deskilling of tasks and job losses").
78. C. Stephen Redhead, Cong. Research Serv., Health Information Technology: Promoting Electronic Connectivity in Healthcare 4 (2005) (describing provider reluctance to invest in HIT for fear that new standards will render their systems incompatible).
79. Privacy has received by far the most attention from the legal academy, which has largely ignored HIT odherwise. See Laura Dunlop, Electronic Health Records: Interoperability Challenges Patients' Right to Privacy, 3 Shidler J.L. Com. & Tech. 16 (2007), at http://www.lctjournal.washington.edu/Vol3/ a016Dunlop.html (on file with the Columbia Law Review) ;
80. James G. Hodge, Jr., National Health Information Privacy and New Federalism, 14 Notre Dame J.L. Ethics & Pub. Pol'y 791 (2000);
81. Sean T. McLaughlin, Pandora's Box: Can HIPAA Still Protect Patient Privacy Under a National Health Care Information Network?, 42 Gonz. L. Rev. 29 (2006);
82. Melissa Steward, Electronic Medical Records: Privacy, Confidentiality, Liability, 26 J. Legal Med. 491 (2005);
83. Terry & Francis, supra note 32.
84. See Terry & Francis, supra note 32, at 685 ("For a national [electronic interoperable health records] system, cost and lack of confidentiality are the two potential deal-breakers.").
85. One commentator believes "Bush and his administration have pressed forward to create an illegal and unethical HIT system by eliminating patients' right to control their personal health information." Patty Enrado, Top Newsmakers: Making Good on Visions Deployed in 2007, Healthcare IT News, Dec. 2007, at 19, 19, available at http://www.nxtbook.com/nxtbooks/medtech/hitn1207/ #/0 (on file with the Columbia Law Review) (quoting Deborah Peel, M.D., Patient Privacy Rights Found.).
86. Nancy Ferris, Sponsors Seek to Move on Health IT Bill, Gov't Health IT, Apr. 3, 2008, at http://www.govhealthit.com/online/news/350296-1.html (on file with the Columbia Law Review) (reporting Chairman Patrick Leahy's statement that Senate Judiciary Committee was "basically stalemated with the privacy provisions" of health IT bill).
87. See Thompson & Brailer, supra note 1, at 5 (noting better control over data available through HIT versus paper records).
88. Nancy Ferris, Health IT Standards Panel Publishes Security and Privacy Standards, Gov't Health IT, Oct. 23, 2007, at http://www.govhealthit.com/online/ news/350078-1. html (on file with the Columbia Law Review) (listing basic "constructs" for privacy protection in EMRs, including security audit trail and access control).
89. Christopher Lee, Transportation Dept Reveals 2nd Laptop Theft in Fla. Office, Wash. Post, Aug. 15, 2006, at All (describing VA response to loss of second laptop containing patient health records within single month).
90. N.L. Police Probe Security Breach of Patient Information, CBC News, Nov. 24, 2007, at http://www.cbc.ca/canada/newfoundland-labrador/story/2007/11/24/ security-breach.html (on file with the Columbia Law Review) (reporting public exposure, through the Internet, of patient names, ID numbers, and HIV results after consultant took home government computer without authorization).
91. Many Britons called for the total abandonment of the UK's massive Connecting for Health IT program after nine regional health administrators lost records affecting 168,000 patients. David Rose, Records Safe with Us, Says NHS Chief, Times (London), Dec. 26, 2007, at 2.
92. See Diana Manos, Healthcare IT Czar to Focus on Private-Federal Collaboration, Healthcare IT News, Oct. 17, 2006, at http://www. healthcareitnews.com/story.cms?id= 5730 (on file with the Columbia Law Review) ("'We won't tolerate the sort of system that violates privacy and confidentiality.... If that occurs, we will have to shut it down and start over.'" (quoting Robert Kolodner, M.D., Nat'l Coordinator for Health IT)). Privacy risks and regulations also increase the costs of HIT. The now-defunct Santa Barbara County Data Exchange spent more on attorneys' fees than on any odher item, including technology.
93. David J. Brailer, From Santa Barbara to Washington: A Person's and a Nation's Journey Toward Portable Health Information, 26 Health Aff. w581, w587 (2007), at http://content.healthaffairs.org/cgi/content/short/hlthaff.26.5.w581 (on file with the Columbia Law Review).
94. See, e.g., Andrew Noyes, Ways and Means Set to Advance Its Own Health IT Bill, CongressDaily PM, July 24, 2008, at http://www.nationaljournal.com/ congressdaily/print-friendly.php?ID=cdp-20080724-5552 (on file with the Columbia Law Review) (reporting conflicting positions of House Ways and Means Committee members as to substance and form of privacy protections).
95. See supra Part I.B (discussing potential benefits of HIT).
96. See Noyes, supra note 76 (reporting that U.S. Rep. Dave Camp urged Congress not to "overburden [healthcare workers] with a new unworkable set of [privacy] regulations").
97. Nancy Ferris, Public Views EHRs as Mixed Blessing, Survey Finds, Gov't Health IT, Dec. 7, 2006, at http://www.govhealthit.com/online/news/97034-1.html (on file with the Columbia Law Review) (reporting seventy-five percent of Americans believed government had "role in making rules to protect the privacy and confidentiality of online health information," but only three percent felt doctors should not have access to their complete medical records).
98. See Robert H. Miller et al., The Value of Electronic Health Records in Solo or Small Group Practices, 24 Health Aff. 1127, 1127-28 (2005) (identifying financial risks to EMR investment); Pizzi, Experts, supra note 63, at 16 (noting initial efficiency losses upon EMR adoption).
99. John Pulley, EHRs Too Costly for Small Medical Practices, Panel Told, Gov't Health IT, Aug. 1, 2008, at http://www.govhealthitcom/online/news/350500- 1.html (on file with the Columbia Law Review) ;
100. see also Redhead, supra note 65, at 6 (reporting average cost of $16,000 to $36,000);
101. Miller et al., supra note 80, at 1130 (reporting average of $44,000 for small practices).
102. See Certification Comm'n for Healthcare Info. Tech., CCHIT Incentive Index 1 (2008), at http://ehrdecisions.com/wp-content/files/ CCHITIncentiveIndex20080925.pdf (on file with the Columbia Law Review) (reporting initiation of ninety private and government HIT adoption incentive programs since 2006, totaling over $700 million in available funding).
103. "'In the [United States, the] government does not buy health IT systems.'" Jon Hoeksma, U.S. Building Momentum by Accrediting Health IT, eHealthEurope, Oct. 26, 2007, at http://www.ehealtheurope.net/news/3160/us- building-momentum-by- accrediting-health-it (on file with the Columbia Law Review) (quoting Mike Leavitt, Sec'y, HHS);
104. see also Brailer, supra note 75, at w585 (observing how subsidies may delay progress when users lack knowledge or incentive to implement HIT appropriately).
105. See Redhead, supra note 65, at 6 (noting "perhaps the most critical issue" is physicians' perception that HIT benefits "accrue largely to the payers and patients," tiiough physicians bear most costs).
106. See Hillestad, supra note 13, at 1108 ("Providers face limited incentives to purchase EMRs because their investment typically translates into revenue losses for them and... savings for payers.").
107. Redhead, supra note 65, at 6-7;
108. see also Brailer, supra note 75, at w584 ("Most providers believe that [health information exchange] harms their viability and are opposed to it, although many won't say this in public.");
109. Gina Kolata, Health Plan That Cuts Costs Raises Doctors' Ire, N.Y. Times, Aug. 11, 2004, at Al (reporting electronic medical record program improved diabetes and congestive heart failure care and reduced costs, but was not supported by many physicians because of reduction in physician revenues).
110. See Roger Taylor et al., Promoting Health Information Technology: Is There a Case for More-Aggressive Government Action?, 24 Health Aff. 1234, 1236-37, 1241-44 (2005) (noting "disconnect between who pays for and who profits from HIT" and reality that "[p]roviders pay in both acquisition costs and revenue losses from practicing costeffectively");
111. see also Kristin Madison, Regulating Health Care Quality in an Information Age, 40 U.C. Davis L. Rev. 1577, 1594-95 (2007) ("Under pay-for-performance initiatives... insurers reward health care providers for demonstrating that they provide high quality care."). These misaligned incentives plague the entire third party payer healthcare system: Providers that keep patients healthy are not rewarded financially, and patients are largely insensitive to cost differences. This hinders HIT adoption efforts as well as their broader cost and quality improvement goals. As Mark Frisse put it, "We're trying to build nirvana on a swamp. You can't expect to build a totally coherent information technology system superimposed on an incoherent healthcare delivery system."
112. Cindy Atoji, Vanderbilt's Mark Frisse on Avoiding the HIT Swamp, Digital Healthcare, at http://www.digitalhcp.com/hitw/newsletters/2007/11/13/interview- mark-frisse (last visited Sept. 26, 2008) (on file with the Columbia Law Review). Perhaps unsurprisingly, integrated systems such as the Veterans Health Administration, which both provide and pay for the healthcare of their members, can expect to extract much more value from investments in HIT than their counterparts in the third party payer regime.
113. See Kupersmith et al., supra note 33, at w166 (reporting cost of maintaining an individual EMR is recovered by avoiding just one redundant laboratory order, because "overall incentives are aligned to realize EHRs' beneficial externalities").
114. Glaser, supra note 38, at 7-8 (listing significant capital requirements for clinical data exchange).
115. Id. (acknowledging unclear financial returns from clinical data exchange).
116. Adler-Milstein et al., supra note 20, at w66;
117. see also Margie Manning, Electronic Health Info Exchange Must Prove Its Worth To Survive, Tampa Bay Bus. J., Dec. 21, 2007, at 6, available at http://www.bizjournals.com/tampabay/stories/2007/12/24/story7.html? b=1198472400%5e1566631 (on file with the Columbia Law Review) (describing Tampa RHIO's struggles to find sustainable business model as it nears end of three-year grant
118. ). But see eHealth Initiative, Impact on Health Care, Fifth Annual Survey of Health Information Exchange at the State, Regional and Community Levels (2008), at http://www.ehealthinitiative.org/2007HIESurvey/2008MeasuresOfSuccess. mspx#3 (on file with the Columbia Law Review) [hereinafter eHealth Initiative, Impact] (finding, for the first time, a majority (sixty-nine percent) of the operational RHIOs surveyed had generated reduced healthcare costs and positive return on investment for participants).
119. See Patty Enrado, Insiders Weigh Santa Barbara Effect, Healthcare IT News, Apr. 2007, at 3, 3, 6, available at http://www.nxtbook.com/nxtbooks/ medtech/hitn0407/#/0 (on file with the Columbia Law Review) (citing affordability and sustainability as major flaws in Santa Barbara model) ;
120. see also Brailer, supra note 75, at w583 (offering explanations for Santa Barbara's failure). Brailer led the Santa Barbara County Data Exchange before becoming HHS's first National Coordinator for Health IT.
121. Id. at w581.
122. See Brailer, supra note 75, at w585 (noting importance of governance structures in light of providers' difficulties forming "broad coalitions with odher stakeholders").
123. See Glaser, supra note 38, at 7 (identifying "intense regional competition," "lack [of] sufficient social capital," and "technical and non-technical challenges" as barriers to regional clinical data exchange).
124. Adler-Milstein et al., supra note 20, at w61;
125. see also Daniel R. Levinson, HHS, State Medicaid Agencies' Initiatives on Health Information Technology and Health Information Exchange 2 (2007) ("[RHIOs] allow most... health care providers and payers in a region or community to securely exchange clinical information. To achieve this goal, RHIOs develop and maintain standards for information sharing and manage a set of contractual conventions among participants.").
126. eHealth Initiative, Organization and Governance, Fourth Annual Survey of Health Information Exchange at the State, Regional and Community Levels (2007), at http://www.ehealthinitiative.org/2007HIESurvey/organization.mspx (on file with the Columbia Law Review) (finding sixty-eight percent of RHIOs have chosen nonprofit model).
127. Office of the Nat'l Coordinator, HHS, Summary of the NHIN Prototype Architecture Contracts 24 (2007), available at http://www.hhs.gov/healthit/ health network/resources/summary-report-on-nhin-Prototype-architectures.pdf (on file with the Columbia Law Review) [hereinafter ONC, NHIN Prototype Summary].
128. See Glaser, supra note 38, at 8 (identifying Indiana, Inland Northwest, and Healthbridge information exchanges as among few currently meeting "financial sustainability challenge"). Of 145 identified regional efforts, only 32 are actively exchanging data.
129. Adler-Milstein et al., supra note 20, at w63-64.
130. But see eHealth Initiative, Impact, supra note 90 (finding majority of operational RHIOs surveyed had generated positive return on investment for participants).
131. Adler-Milstein et al., supra note 20, at w65 (finding imaging and lab result exchange most common).
132. Id. at w69 ("[T]he jury is still out on whether the current market-oriented approach of offering small grants and waiting to see which RHIOs flourish will work.").
133. Glaser, supra note 38, at 8.
134. Diana Manos, Fed Panel Tips Hat to Microsoft, Google, Dossia for Advances in PHR Use, Healthcare IT News, July 31, 2008, at http://www.healthcareitnews. com/print Story.cms?id=9659 (on file with the Columbia Law Review).
135. Some observers have already declared that personal records, not regional networks, are the future of HIT. Bernie Monegain, Healthcare Leaders Favor Personal Networks to RHIOs for Data Exchange, Healthcare IT News, July 23, 2008, at http://www.healthcareitnews.com/printStory.cms?id=9630 (on file with the Columbia Law Review).
136. eHealth Initiative, State of the Field, Fifth Annual Survey of Health Information Exchange at the State, Regional and Community Levels (2008), at http://www.ehealthinitiative.org/HIESurvey/2008StateOfTheField.mspx (on file with the Columbia Law Review) [hereinafter eHealth Initiative, State of the Field] (finding forty-two fully operational initiatives in 2008, versus thirty-two in 2007 and twenty-six in 2006).
137. Martin Jensen, Allscripts Exec Drinks CCD Koolaid, Sees RHIOs Dry Up, The HIT Transition Blog, Oct 30, 2007, at http://blog.hittransition.com/2007/10/ allscriptsexec.html (on file with the Columbia Law Review) (criticizing view that interoperability can be achieved through common data standards alone).
138. See id. (arguing nonprofit model might be more successful than self-sustainability focus).
139. See, e.g., Jonah Frohlich et al., Retrospective: Lessons Learned from the Santa Barbara Project and Their Implications for Health Information Exchange, 26 Health Aff. w589, w591 (2007), at http://content.healthaffairs.org/cgi/ content/short/hlthaff.26.5. w589 (on file with the Columbia Law Review) (attributing cost and complexity of regional exchange to "absence of widely supported standards").
140. Joseph Conn, EHVRA Members Weigh in on CCHIT Criteria, Mod. Healthcare, Oct 23, 2007, at http://www.modernhealthcare.com/apps/pbcs.dll/article?AID=C/ 2007 1023/FREE/310230003/0/FRONTPAGE (on file with the Columbia Law Review) (quoting vendor's statement that adoption of vendor standard would allow different provider systems to "support transitions... without requiring a regional health information exchange").
141. See Jensen, supra note 103 (noting difficulty of achieving data exchange without "mutual exchange of value").
142. Exec. Order No. 13,335, 3 C.F.R. 160, 160-62 (2004). The National Coordinator must "develop, maintain, and direct the implementation of a strategic plan to guide the nationwide implementation of interoperable health information technology." Id. at 161.
143. The National Coordinator "shall report to the Secretary regarding progress" on the strategic plan "within 90 days after the National Coordinator begins operations and periodically thereafter." Id. at 161.
144. Office of the Nat'l Coordinator, HHS, The ONCCoordinated Federal Health IT Strategic Plan: 2008-2012 (2008), available at http://www.hhs.gov/healthit/ resources/HITStrategicPlan.pdf (on file with the Columbia Law Review) [hereinafter ONC, Strategic Plan].
145. Before the report's publication, the Government Accountability Office (GAO) chastised ONC for "not yet defin[ing] the detailed plans and milestones needed to ensure that its goals are met" in accordance with the requirements of Executive Order 13,335. GAO, Health Information Technology 9 (2007), available at http://www.gao.gov/new.items/d07238.pdf (on file with the Columbia Law Review). Once the plan was issued, many observers remained unsatisfied.
146. Bernie Monegain, National IT Plan Draws Criticism, Healthcare IT News, July 2008, at 1, 36, available at http://www.nxtbook.com/nxtbooks/medtech/ hitn0708/#/1/OnePage (on file with the Columbia Law Review).
147. Local and private sector actors remain integral parts of the HIT landscape. See Mark E. Frisse & W. Michael Heekin, State Government Initiatives, in Paper Kills 119, 121-23 (David Merritt ed., 2007) (recognizing local efforts and arguing against top-down approach to HIT). Since this Note addresses HIT through the lens of federalism, local and private actors receive less attention than they generally merit.
148. See Vicki Kemper, Medicaid Feeling the Effects of the States' Fiscal Crisis, L.A. Times, Sept. 23, 2003, at A13 (reporting "ballooning Medicaid costs").
149. See eHealth Initiative, State Policy, Fourth Annual Survey of Health Information Exchange at the State, Regional and Community Levels (2007), at http://www.ehealthinitiative.org/2007HIESurvey/statepolicy.mspx (on file with the Columbia Law Review) [hereinafter eHealth Initiative, State Policy] ("Despite [HHS progress]... a lack of comprehensive action by Congress may be a significant contributing factor to the increase in state-level legislation... in 2007.");
150. Nancy Ferris, Tenn. and Vt. Governors Will Lead State Alliance, Gov't Health IT, Nov. 7, 2006, at http://www.govhealthit.com/online/news/96743-1.html (on file with the Columbia Law Review) (citing Congress's failure to pass HIT bill as reason for increasing state leadership).
151. Found, of Research and Educ. of Am. Health Info. Mgmt. Ass'n, State Level Health Information Exchange Consensus Project, Final Report Part I, at 16 (2008), available at http://www.slhie.org/Docs/FinalReportPart1.8.pdf (on file with the Columbia Law Review) [hereinafter Consensus Project].
152. eHealth Initiative, State Policy, supra note 114 (contrasting dearth of pre-2005 state legislative activity to 329 bills introduced and 66 bills signed into law between 2005 and 2007).
153. N.Y. HIT Stakeholders Group Planning Comm., Recommendations to Create a New Statewide Organization To Sustain Multi-stakeholder HIT Collaboration 4 (2006), available at http://www.nyehealth.org/files/File-Repository16/eSummit/ Advancing-Health-Information-Strategy-in-NY.pdf (on file with the Columbia Law Review) [hereinafter N.Y. Planning Comm.] ("State-level coordination of HIT efforts was not included in the initial HHS plans, but a grass roots movement to mobilize HIT implementation at the state level has emerged.").
154. See David Merritt, Introduction to Frisse Sc Heekin, supra note 112, at 119, 119 ("In addition to being health insurers and regulators that can drive health IT, state governments have changed the way they purchase healthcare to promote the adoption of interoperable IT, and they have convened and coordinated many local and regional connectivity networks.").
155. See eHealth Initiative, State Policy, supra note 114 (surveying public-private nonprofit corporations, advisory committees, and workgroups at center of state HIT efforts.)
156. N.Y. Planning Comm., supra note 117, at 4. The partnerships usually are established through an official state act - generally legislation or an executive order - but have also arisen from independent private sector action.
157. Id. at 4.
158. See generally Consensus Project, supra note 115, at 47-61 (outlining organization models of state-level HIT initiatives).
159. See, e.g., Ky. Rev. Stat. Ann. § 216.265 (LexisNexis 2007) (listing members of Kentucky e-Health Network Board);
160. N.Y. Planning Comm., supra note 117, at 5 (describing State HIT Working Group).
161. See, e.g., § 216.265 (listing members).
162. eHealth Initiative, State Policy, supra note 114 (noting prevalence of advisory committees and workgroups among state-created HIT organizations).
163. See Consensus Project, supra note 115, at 31 (observing many state initiatives are advisory bodies but most will migrate to formal, independent public-private partnerships).
164. Id. at 8, app. B at 42-44.
165. Nancy Ferris, Minnesota Will Require EHRs by 2015, Gov't Health IT, Aug. 17, 2007, at http://www.govhealthit.com/online/news/103527-1.html (on file with the Columbia Law Review);
166. E-mail from Michael Hawton, Project Manager, Minn. Dep't of Health, to author (Oct. 2, 2008, 15:55 EST) (on file with the Columbia Law Review). Minnesota uses the term electronic health record, or EHR, rather than EMR.
167. Id.;
168. see also supra note 32.
169. See Minn. Dep't of Health, From Vision to Action 2 (2008), available at http://www.health.state.mn.us/e-health/legrpt2008.pdf (on file with the Columbia Law Review) (reporting Initiative's efforts to identify highest value information to exchange and to prioritize data standards development).
170. Id. attachment D (describing workgroup and providing sample patient consent form).
171. Scott Leitz, Introductory Letter to id.
172. See Telephone Interview with W. Michael Heekin, former Chairman, Governor's Health Info. Infrastructure Advisory Bd. (Dec. 16, 2007) [hereinafter Heekin, Interview] (analogizing creation of health information network to construction of U.S. interstate highway system).
173. See W. Michael Heekin, Governor's Health Info. Infrastructure Advisory Bd., Final Report to Gov. Crist 5 (2007), available at http://www.ahca. myflorida.com/dhit/Board/Brdmtg63007.pdf (on file with the Columbia IMW Review) [hereinafter Heekin, Final Report] (describing development of state-level network among stakeholders); Telephone Interview with Russ Thomas, Chief Operating Officer, Availity (Oct. 2, 2008).
174. See Agency for Health Care Admin., Governor's Health Info. Infrastructure Advisory Bd., at http://ahca.myflorida.com/dhit/Board/members.shtml (last visited Sept. 28, 2008) (on file with the Columbia Law Review) (listing members). The Board's audiorization lapsed in 2007, and the Agency for Health Care Administration now spearheads Florida's HIT efforts. See Consensus Project, supra note 115, app. C at 46 n.30.
175. Heekin, Final Report, supra note 131, at 2, 6-7;
176. see also Manning, supra note 90 (reporting uncertain status of Tampa RHIO as state funding ends).
177. Heekin, Final Report, supra note 131, at 7.
178. Levinson, supra note 94, at 10-11 (noting only Florida, Kansas, Mississippi, Missouri, and Tennessee Medicaid agencies had developed e-prescribing initiatives). Federal encouragement of innovation through Medicaid § 1115 waivers, enhanced federal contributions for IT investments, and local utilization of HHS claims data present gain-sharing opportunities for bodi levels of government. See infra notes 144-150 and accompanying text (describing advantages of Medicaid involvement in HIT initiatives). Federal bureaucrats do not always recognize these opportunities and can at times stand in the way of progress.
179. See Telephone Interview with David Merritt, Project Dir., Ctr. for Health Transformation (Dec. 20, 2007) [hereinafter Merritt, Interview] (indicating HHS encouraged Florida Medicaid not to participate in successful data sharing project).
180. The Department of Defense (DOD) and Florida Agency for Healthcare Administration agreed to share medical records electronically through the Tampa Bay RHIO, a partnership DOD hopes to replicate. Nancy Ferris, DOD, Florida to Exchange eHealth Records, Gov't Health IT, Apr. 5, 2007, at http://www. govhealthit.com/online/news/98153-1.html (on file with the Columbia Law Review).
181. N.Y. eHealth Collaborative, Interoperable Health Information Exchange Policy, Governance, and Accountability 4 (2008), available at http://www.nyehealth.org/files/File-Repository16/pdf/NY-RHIO-Accred-Paper.pdf (on file with the Columbia Law Review) (describing efforts of state Office of Health Information Technology Transformation and public-private New York eHealth Collaborative stakeholder group).
182. Id. at 3. The first round of funding in May 2006 awarded $52,875 million. Id. New York announced a second round of funding in September 2007. Press Release, N.Y. State Dept of Health, New York Announces $105.75 Million in Grants Available for Interoperable Health Information Technology Plans (Sept. 25, 2007), available at http://www.health.state.ny.us/press/ releases/2007/2007-09-25-heal-it-grants.htm (on file with the Columbia Law Review). Over $100 million in federal and matching funds has also been invested since 2006. N.Y. eHealth Collaborative, supra note 137, at 3.
183. Consensus Project, supra note 115, at 29.
184. Id. at 53, 55.
185. N.Y. Planning Comm., supra note 117, at 7-8 ("[The stakeholders group] focuses on policy development and communications.... It is not envisioned as an operational organization which would, for example, design and operate a data exchange network.").
186. See Press Release, N.Y. eHealth Collaborative, New York eHealth Collaborative Receives Federal Contract to Advance Interoperable Health Information Exchange and Improve Health (Oct. 10, 2007), available at http://nyehealth.org/node/53 (on file with the Columbia Law Review) (describing proposed data exchange between two providers within two New York RHIOs).
187. Consensus Project, supra note 115, at 53, 55; N.Y. eHealth Collaborative, supra note 137, at 3-6.
188. Some states have looked to Medicaid waiver authority to incorporate HIT into their delivery and reimbursement systems, but federal budget neutrality requirements make significant investments difficult. Alfreds et al., supra note 64, at 18.
189. States share Medicaid costs with the federal government, with states paying between twenty-four and fifty percent of total costs, depending on per capita income. See Federal Financial Participation in State Assistance Expenditures, FY 2008, 71 Fed. Reg. 69,209, 69,209-11 (Nov. 30, 2006) (listing each state's share of Medicaid costs).
190. Medicaid programs hold vast amounts of patient data, through the claims they receive, that make them desirable partners in any health information exchange regime. Merritt, Interview, supra note 135.
191. See supra note 145. One sign federal officials are willing to put their money where their mouth is for HIT is the ninety percent cost-share offered to states upgrading Medicaid IT systems according to HHS requirements.
192. Alfreds et al., supra note 64, at 7-8, 17;
193. Levinson, supra note 94, at 4, 15-16.
194. A claims-based medical history is a single record that aggregates patient data already stored electronically by insurers or government payers. Levinson, supra note 94, at 8. Twenty-seven state Medicaid programs are involved in such projects, and nine more have already implemented one.
195. Id. at 7-9.
196. Florida, Kansas, Mississippi, Missouri, and Tennessee have ongoing Medicaid e-prescribing initiatives, with twenty-one other state programs in development. Id. at 10-11.
197. Id. at 11-12 (noting ongoing Missouri and Wyoming programs, plus three planned state initiatives).
198. See supra notes 120-124 and accompanying text.
199. Compare Maine's planned network, which will allow patients to opt out entirely or block certain information, A Digital Route to Speedy Diagnosis, Bangor Daily News, Jan. 17, 2008, available at http://www.hinfonet.org/docs/ Bangor-Daily-News-1-17-08.pdf (on file with the Columbia Law Review),
200. with the opt-in statewide medication history and RHIO planned by Vermont, Bob Brewin, Vermont to Announce Statewide RHIO, Gov't Health IT, Nov. 22, 2006, at http://www.govhealthit.com/online/news/96910-1.hunl (on file with the Columbia Law Review).
201. See supra note 82 and accompanying text
202. California hopes to procure HIT services in bulk and offer them as a public utility to providers wishing to participate in the statewide network. Digital Audio File: Interview by Brian Robinson, Gov't Health IT, with Donald Holmquest, CEO, CaIRHIO, (Dec. 20, 2007), at http://www.govhealthit.com/ specials/holmquest (on file with the Columbia Law Review).
203. One such example is Florida's subsidization of RHIO start-ups. Heekin, Final Report, supra note 131, at 2 (reporting $3.5 million investment over two years, matched by $6.7 million in outside funding).
204. See supra notes 120-124 and accompanying text.
205. See, e.g., Lawmakers Mull Changes to Federal Health IT Programs, iHealthBeat, Sept. 27, 2007, at http://www.ihealthbeat.org/articles/2007/9/27/ Lawmakers-Mull-Changes-to-Federal-Health-IT-Programs.aspx?topicID=91 (on file with the Columbia Law Review) (reporting Rep. Bart Gordon's attempt to transfer authority from ONC to National Institute of Standards and Technology based on federal efforts' slow progress).
206. The White House, Transforming Health Care: The President's Health Information Technology Plan, at http://www.whitehouse.gov/infocus/technology/ economic-policy200404/chap3.html (last visited Sept. 28, 2008) (on file with the Columbia Law Review).
207. Federal efforts have been criticized for their lack of focus. See Atoji, supra note 87 (" 'It is bureaucracy run amok. I simply don't understand why HHS... cannot focus on doing several things well rather than creating a plethora of communities and working groups that literally consume everyone's time.'" (quoting Mark Frisse, M.D., Vanderbilt Univ.)). Others applaud the diverse approach. Ed Larsen wrote: [T] he ONC initiatives, the many [HHS] pay-for-performance pilots and the diverse state-level initiatives are to be applauded and encouraged, not deplored for lacking uniformity, coordination and control, i.e., not being the product of a single strategic plan.... We have these many initiatives... that will converge over time into both an improved... healthcare delivery model and the IT to support it. Ed Larsen, ONCs Strategy, Healthcare IT News, Dec. 2007, at 26, 26, available at http://www.nxtbook.com/ nxtbooks/medtech/hitn1207/#/0 (on file with the Columbia Law Review).
208. Medicare Prescription Drug, Improvement, and Modernization Act of 2003 §§ 101(a)(2), 108, 42 U.S.C §§ 1395w-104, 1395nn (2000 & Supp. V 2005) (creating HIT exemption to Medicare anti-kickback and self-referral prohibitions); see also infra note 167 and accompanying text (discussing same).
209. Deficit Reduction Act of 2005 § 6081, 42 U.S.C.A. § 1396b (West 2003 & Supp. 2007) (authorizing Medicaid Transformation Grants for, inter alia, EMR adoption and e-prescribing).
210. In 2006, the House and Senate approved HIT bills that were never reconciled. Nancy Ferris, Senate Leaders Unveil Health IT Bill, Gov't Health IT, June 22, 2007, at http://www.govhealthit.com/online/news/103066-1.html (on file with the Columbia Law Review).
211. The bills diverged over public spending, interoperability standards, and a new privacy standard. Legislative Jam-Up, Gov't Health IT, Aug. 14, 2006, at http://www.govhealthit.com/print/3-17/policy/95601-1.html (on file with the Columbia Law Review). Chances of passing HIT legislation during the 110th Congress are shrinking rapidly.
212. Nancy Ferris, Senate Effort to Grease the Skids for Health IT Bill Fails, Gov't Health IT, Aug. 1, 2008, at http://www.govhealthit.com/online/news/ 350501-1.hunl (on file with the Columbia Law Review). Less ambitious than its 2006 predecessors, the current bill would codify ONC and the existing HHS advisory group for HIT, create a second public-private coordinating group, require physician quality reporting, and authorize $141 million for three grant programs. Wired for Health Care Quality Act, S. 1693, 110th Cong. §§ 3002-3003, 3006, 3008-3009 (2008).
213. See supra Part I.B.1.
214. Exec. Order No. 13,335, 3 C.F.R. 160, 161 (2004) ("The plan shall . . . [n]ot assume or rely upon additional Federal resources or spending to accomplish adoption of interoperable [HIT].").
215. Hoeksma, supra note 83.
216. Richard Pizzi, North Carolina Physicians to Benefit from Stark Relaxation, Healthcare IT News, Dec. 2007, at 15, 17, available at http://www.nxtbook.com/nxtbooks/medtech/hitnl207/#/0 (on file with the Columbia Law Review) [hereinafter Pizzi, Stark Relaxation] ("'Everyone has to be vested for this to work . . . . Everyone has to have some skin in the game.'" (quoting Stuart James, CIO, Univ. Health Sys. of E. Carolina));
217. see also Brailer, supra note 75, at w585 ("Santa Barbara providers had nothing at risk and no hurdle of commitment in the project; they bore no cost for the philandiropic capital and faced no adverse consequences for how it was spent").
218. Until Congress exempted HIT investment, Medicare Prescription Drug, Improvement, and Modernization Act of 2003 §§ 101(a)(2), 108, 42 U.S.C §§ 1320a-7b, 1395w-104(e)(6), 1395nn (2000 Sc Supp. V 2005), rules designed to prohibit kickbacks and self-referrals also prevented hospitals and other large provider organizations from sharing HIT capabilities with affiliated physicians, even though hospitals and other "hub" entities could be natural HIT leaders in many communities, see, e.g., Pizzi, Stark Relaxation, supra note 166 (reporting interest of regional medical center in serving as focal point of local HIT adoption effort).
219. Many hospitals are offering federally certified EMRs to their staff physicians now that federal law allows it See CCHIT, supra note 82, at 6-12 (listing hospital incentive programs).
220. See Physicians' Referrals to Health Care Entities with Which They Have Financial Relationships; Exceptions for Certain Electronic Prescribing and Electronic Health Records Arrangements, 71 Fed. Reg. 45,140, 45,140 (Aug. 8, 2006) (creating exception to Medicare self-referral prohibition for qualifying HIT investments);
221. Safe Harbors for Certain Electronic Prescribing and Electronic Health Records Arrangements Under the Anti-Kickback Statute, 71 Fed. Reg. 45,110, 45,122 (Aug. 8, 2006) (creating safe harbor to Medicare kickback prohibition for qualifying HIT investments) ;
222. John Pulley, Picking Up the Check for EMRs, Gov't Health IT, Nov. 26, 2007, at http://www.govhealthit.com/blogs/ghitnotebook/350133-1.html (on file with the Columbia Law Review) (describing amendments to self-referral and anti-kickback laws as efforts to "encourage rank-and-file physicians to adopt [EMRs]").
223. See Memorandum from Lois G. Lerner, Dir., Exempt Orgs., IRS, to Dir., Exempt Orgs., Examinations & Dir., Exempt Orgs., Rulings & Agreements (May 11, 2007), available at http://www.irs.ustreas.gov/pub/irs-tege/ ehrdirective.pdf (on file with the Columbia Law Review) (clarifying that EMRs and related support offered by nonprofit hospitals to affiliated physicians will not jeopardize hospitals' tax-exempt status).
224. See Nancy Ferris, DEA Proposes Rules To Allow E-Prescribing of Controlled Substances, Gov't Health IT, June 27, 2008, at http://www.govhealthit.com/ online/news/350451-1.html (on file with the Columbia Law Review) (reporting DEA proposed rulemaking to allow, for the first time, electronic prescribing of Schedule II controlled substances).
225. See, e.g., Pizzi, Stark Relaxation, supra note 166, at 15 (reporting North Carolina hospital system offering EMRs to physicians in its twenty-nine county region). A consultant "predicts the Stark relaxation will increase the number of physicians who adopt or upgrade EHRs by 57 percent in the next 12 months," but said "most providers would probably take a 'wait-and-see' approach."
226. Id. at 17.
227. One recent study suggests few hospitals have taken advantage of the self-referral and anti-kickback safe harbors. John Pulley, Study: Stark Law Reforms Fall Short of Expectations, Gov't Health IT, Sept. 19, 2008, at http://www.govhealthit.com/online/news/350582-1.html (on file with the Columbia Law Review).
228. Redhead, supra note 65, at 4.
229. ONC, Strategic Plan, supra note 110, at A46.
230. See Michael F. Cannon, Pay-For-Performance: Is Medicare a Good Candidate?, 7 Yale J. Health Pol'y L. & Ethics 1, 28 (2007) (noting that "[i]n 2005, Medicare released the first quality-based bonus payments in the program's history").
231. Nancy Ferris, Medicare Docs Can Get Bonuses for Using EHRs and E-Prescribing in 2008, Gov't Health IT, Nov. 5, 2007, at http://www.govhealthit. com/online/news/3501 08-1.html (on file with the Columbia Law Review) (describing plan to list EMR and e-prescribing as quality measures eligible for CMS bonus payments);
232. Claudia Pinto, Medicare Incentives May Spur More Tenn. Doctors to E-Prescribe, Tennessean, July 31, 2008, at http://www.tennessean.com/apps/pbcs. dll/article?AID=/200807310210/news07/807310360 (on file with the Columbia Law Review) (describing bonuses to physicians using e-prescribing beginning at 2% in 2009 and declining to 0.5% in 2013, with penalties for not e-prescribing beginning in 2012).
233. See, e.g., David Blumenthal, Commonwealth Fund, Health Information Technology: What is the Federal Government's Role? 5 (2006), available at http://www.commonwealdifund.org/usr-doc/Blumenthal-HIT-907.pdf?section=4039 (on file with the Columbia Law Review) (listing collective action problems as one barrier to HIT).
234. Cf. Amalia R. Miller & Catherine E. Tucker, Privacy Protection and Technology Diffusion: The Case of Electronic Medical Records 2-3, 13-15 (NET Institute, Working Paper No. 07-16, 2008), available at http://papers.ssrn.com/ sol3/papers.cfm?abstract-id=960233 (on file with the Columbia Law Review) (identifying network effects of EMRs, but noting they can be negated by state privacy laws).
235. But returns from data exchange will diminish as the network grows. Since most care is delivered locally, Frisse & Heekin, supra note 112, at 121, the demand for national data sharing is thin. Increasing HIT penetration within a local market, however, should produce significant network effects by increasing the stock of oft-used data available to clinicians.
236. See Telephone Interview with Devore Culver, Executive Dir., Maine HealthlnfoNet (Jan. 4, 2008) (observing that many community-based HIT projects are progressing, but statewide networks are lagging due to insufficient demand for data exchange over extended geographic distances).
237. Frisse Sc Heekin, supra note 112, at 128 (highlighting need for national leadership on data exchange standards and nationwide networking).
238. See Alfreds et al., supra note 64, at 5 (noting $160 million from Agency for Healthcare Research and Quality (AHRQ) in 2006 for HIT in forty-one states, especially rural and underserved areas); id. at 8 (noting $150 million audiorized by Deficit Reduction Act for Medicaid transformation grants); id. at 9 (noting five statewide data exchange demonstration contracts awarded by AHRQ in 2004);
239. Levinson, supra note 94, at 4 (noting eighteen CMS grants for HIT totaling $64 million in 2007). While this commitment by HHS is commendable, it pales in comparison to its overall IT spending.
240. See Alfreds et al., supra note 64, at 7 (calculating total state and federal Medicaid IT spending during fiscal year 2004 at $2.7 billion).
241. ONC, NHIN Prototype Summary, supra note 96, at 2.
242. Bernie Monegain, NHIN Contracts Awarded to Nine Data Exchanges, Healthcare IT News, Nov. 2007, at 8, 8, available at http://www. healuicareitnews.com/story.cms?id=8027 (on file with the Columbia Law Review).
243. HHS, Health Information Technology Initiative: Major Accomplishments 2004-2006, at 3-4, at http://www.hhs.gov/healthit/news/Accomplishments2006.pdf (on file with the Columbia Law Review) [hereinafter HHS, Major Accomplishments].
244. See supra Part II.A.
245. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("There must be power in the states and the nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs.").
246. David Rose, £6.2bn IT Scheme for NHS 'Is Not Working and Is Not Going to Work,' Times (London), Feb. 13, 2007, at 9.
247. Id.
248. See, e.g., Elizabeth Judge & Joe Bolger, Accenture Abandons Its Work on Troubled NHS IT Project, Times (London), Sept. 29, 2006, at 58 (describing "delays and glitches" of project);
249. Brian Robinson, UK's National EHR System Faces Four-Year Delay, Gov't Health IT, May 19, 2008, at http://www.govhealthit.com/online/news/350370-1. html (on file with the Columbia Law Review) ("The four-year delay . . . comes after repeated criticism of the £12.7 billion ($24.8 billion) project for past stumbles and fears about the security of patient information.").
250. Others view the U.K.'s approach favorably to the current U.S. model. See AdlerMilstein et al., supra note 20, at w67 (suggesting U.K. government-funded public good model of clinical data exchange is superior to U.S. "small business model," at least in terms of financial sustainability). Should the United States move toward a national healthcare system, top-down implementation might become more feasible, though many benefits of experimentation would presumably remain intact.
251. RAND, supra note 9, at 3 ("[P]iecemeal implementation . . . may actually create additional barriers to the development of a future standardized system because of the high costs of replacing or converting today's non-standard systems.").
252. E-mail from Devore Culver, Executive Dir., Maine HealdilnfoNet, to author (Sept. 21, 2008, 11:46 EST) (on file with the Columbia Law Review). While it might be possible for two institutions to develop relatively simple translations or "work-arounds" when data are expressed differendy, the magnitude of the problem increases exponentially when multiple institutions-each using its own coding systems-must communicate. The lack of content standardization can even plague integrated institutions such as the VA.
253. See Kupersmith et al., supra note 33, at w163 (describing inability to aggregate data for research where different databases used different terminology).
254. Cf. Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. Rev. 903, 925 (1994) (arguing states lack incentives to participate in risky experiments and will wait for other states to generate results, limiting total number of experiments).
255. Disparate state HIT regimes could become much more problematic under a nationalized healhtcare system designed to exploit central administration and efficiency gains.
256. See New York v. United States, 505 U.S. 144, 182-83 (1992) (explaining frustration of federalism principles when state and federal officials depart from constitutional allocation of regulatory responsibility) ; see also Garnett, supra note 6, at 20 (explaining accountability-reinforcement theme of post-Lopez "New Federalism," which emphasizes decentralization and dual sovereignty).
257. Linda L. Dimitropoulos, Privacy and Security Solutions for Interoperable Health Information Exchange, at ES-1 to -2 (2007), available at http://www.rti.org/pubs/nationwide-summary.pdf (on file with the Columbia Law Review).
258. Brailer, supra note 75, at w587. But federal officials did not necessarily envision a significant operational or governance role for states in HIT. See supra note 117 and accompanying text.
259. Dimitropoulos, supra note 194, at 7-1.
260. The first annual report of the State Alliance for eHealth was recentiy released and addressed privacy and security, cross-border licensing, and the need for expanded state agency HIT capacity, among other state-focused issues. State Alliance for eHealth, Accelerating Progress passim (2008), available at http://www.nga.org/Files/pdf/0809Ehealthreport.pdf (on file with the Columbia Law Review).
261. Consensus Project, supra note 115, at 6; Paul McCloskey, Federal Health IT Office Extends Study of State Information Sharing, Gov't Health IT, Mar. 1, 2007, at http://www.govhealthit.com/online/news/97796-1.html (on file with the Columbia Law Review).
262. For further background, see State RHIO Consensus Project, at http://www.StateRHIO.org (last visited Sept 28, 2008).
263. Dimitropoulos, supra note 194, at 7-2 (identifying "lack of knowledge" of state leaders and stakeholders regarding federal policies, and risk that state ignorance will produce misalignment between state and federal policies).
264. Dorf & Sabel, supra note 11, at 314-16. Since Michael Dorf and Charles Sabel introduced experimentalism in 1998, several others have elaborated on it and applied it to specific policy areas.
265. See, e.g., Brandon Garrett, Remedying Racial Profiling, 33 Colum. Hum. Rts. L. Rev. 41, 45 n.14 (2001);
266. Bradley C. Karkkainen, Information as Environmental Regulation: TRI and Performance Benchmarking, Precursor to a New Paradigm?, 89 Geo. L.J. 257, 323 n.275 (2001) [hereinafter Karkkainen, TRI];
267. James S. Liebman & Charles F. Sabel, A Public Laboratory Dewey Barely Imagined: The Emerging Model of School Governance and Legal Reform, 28 N.Y.U. Rev. L. & Soc. Change 183, 189 n.23 (2003) (collecting articles applying experimentalist principles in various policy areas).
268. Dorf & Sabel, supra note 11, at 283-89.
269. Bradley C. Karkkainen, "New Governance" in Legal Thought and in the World: Some Splitting as Antidote to Overzealous Lumping, 89 Minn. L. Rev. 471, 471 (2004) [hereinafter Karkkainen, Splitting]. Its several variants include "responsive regulation," Ian Ayres Sc John Braidiwaite, Responsive Regulation: Transcending the Deregulation Debate 4-7 (1992);
270. "co ntractarian regulation," David A. Dana, The New "Contractarian" Paradigm in Environmental Regulation, 2000 U. Ill. L. Rev. 35, 36;
271. "collaborative governance," Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. Rev. 1, 31 (1997);
272. and "best practices," David Zaring, Best Practices, 81 N.Y.U. L. Rev. 294, 296-98 (2006).
273. Cynthia Esdund, Rebuilding the Law of the Workplace in an Era of Self-Regulation, 105 Colum. L. Rev. 319, 341 n.94 (2005).
274. See generally Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 Minn. L. Rev. 342 (2004) (describing shift from regulatory paradigm to governance model). Bradley Karkkainen fine-tunes some of Professor Lobel's observations in Karkkainen, Splitting, supra note 202.
275. Katherine R. Kruse, Instituting Innocence Reform: Wisconsin's New Governance Experiment, 2006 Wis. L. Rev. 645, 677.
276. These terms are interchangeable for the purposes of this Note. In an experimentalist regime, regulations could be applied by a central authority (federal or state) to either governmental subunits (states or localities) or to private actors directly. The central authority also could be a nongovernmental organization that sets standards for private sector subsidiaries without any governmental involvement at all. The relationships of devolution and accountability-not the identity of the parties-comprise the linchpin of this regulatory model.
277. Michael C. Dorf, After Bureaucracy, 71 U. Chi. L. Rev 1245, 1266-67 (2004) [hereinafter Dorf, After Bureaucracy]. Initial "framework legislation" sets forth broad goals and requirements for all regulated parties.
278. Id. at 1271;
279. see also Liebman & Sabel, supra note 200, at 279 (describing general legislative frameworks translated locally into specific goals). Where local funding is insufficient, Congress would also be responsible for underwriting the necessary collaboration and information gathering.
280. Dorf & Sabel, supra note 11, at 340.
281. Dorf & Sabel, supra note 11, at 340.
282. Id. at 430.
283. Id. at 350-54, 430.
284. For instance, an experimentalist regime might mandate that local jurisdictions reduce carbon emissions by a certain amount. Those jurisdictions could comply by providing incentives for hybrid vehicles, transitioning to renewable sources of local power production, conserving energy usage, or adopting any such combination that fits local preferences. The central authority's principal concern is that the target, or performance standard, is met Meanwhile, a traditional command-and-control regime might establish a single fuel emissions standard for all cars or power plants. The principal concern would be car or plant compliance with the design standard, even though regulated parties might achieve deeper reductions through other, less cosdy steps tailored to the jurisdiction.
285. Karkkainen, Splitting, supra note 202, at 488 (noting "reserved coercive power . . . of the center to intervene for purposes of forcing reconsideration and reconfiguration of local experiments gone seriously awry").
286. Liebman & Sabel, supra note 200, at 189 ("[R]ules are provisional frameworks for action and are corrected at the urging of 'subordinates' in light of their experience 'implementing' them: Ends are revised in light of means and vice versa.").
287. Dorf & Sabel, supra note 11, at 316-17.
288. "[I]n democratic experimentalism, federalism is an essential ingredient of the national framework." Id. at 428.
289. See id. at 388-404 (explaining role of courts in experimentalist system);
290. see also Mark Tushnet, A New Constitutionalism for Liberals?, 28 N.Y.U. Rev. L. & Soc. Change 357, 358 (2003) (observing experimentalismo broad application makes it "a candidate for consideration as a general theory of constitutional law").
291. See Hodel v. Va. Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 288-89 (1981) (upholding federal regulatory audiority because states had option of regulating the conduct themselves according to federal standards).
292. See South Dakota v. Dole, 483 U.S. 203, 211-12 (1987) (upholding under Spending Clause federal highway funding conditioned upon states increasing drinking age).
293. See Dorf & Sabel, supra note 11, at 428-32 (proposing revitalized nondelegation and anticommandeering principles to ensure states will receive sufficient-but not unduly specific or paternalistic-goals from federal officials in cooperative federalist endeavors).
294. Cf. Tushnet, supra note 216, at 358 (criticizing tendency of experimentalists to "see a world in a grain of sand").
295. See supra Part II.A.
296. Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. Rev. 543, 547 (2000) [hereinafter Freeman, Private Role] (describing symbiotic rather than zero-sum relationship between public and private in administrative law); Liebman & Sabel, supra note 200, at 282 (observing collapse of "distinctions between public and private" where continuous regulatory readjustment and outside participation drive school reform).
297. See Freeman, Private Role, supra note 222, at 548 (describing emergence of "alternative conception of administration as a set of negotiated relationships," in which "public and private actors negotiate over policy making, implementation, and enforcement").
298. See HHS, American Health Information Community, at http://www hhs gov/healthit/community/background (last visited Sept. 5, 2008) (on file with the Columbia Law Review) [hereinafter HHS, Community] (describing eighteen-member advisory board chaired by HHS Secretary Leavitt that advises HHS on HIT policy).
299. See Brailer, supra note 75, at w586-87 (linking creation of HIT Standards Panel and Certification Commission for HIT to need "for standards prioritization, development, and maintenance outside the regulatory process" connecting "standards priorities and timelines" to broader healthcare reform agenda).
300. Such restraint by Congress and HHS cannot be assumed, even if experimentalist HIT legislation were adopted. Federal officials will be tempted to intervene and take political credit or assign blame. Hope that Washington will tie itself to the mast is a principle (or shortcoming) this proposal shares with experimentalism. See Dorf & Sabel supra note 11, at 420 (noting need for "far-reaching (if self-imposed) limits on the power of Congress to foist its will on the states").
301. See supra notes 194-198 and accompanying text.
302. See Dorf, After Bureaucracy, supra note 207, at 1269 (arguing "people with diverse interests and viewpoints can come together to solve their common problems by deliberating rather than simply negotiating" and that pooling local knowledge can illuminate "opportunities that individually they would miss").
303. Liebman & Sabel, supra note 200, at 192 (arguing focus on accountability can "trigger a race to the top" by facilitating information exchange among states already reforming and "exposing laggards to political reprisals by an aggrieved well-informed citizenry").
304. See supra note 213 and accompanying text (noting feedback role for local jurisdictions in experimentalist system).
305. Such monitoring could be particularly important given states' less formal governance structures, which may not adequately represent all constituencies. Concerns overlooked by certain states and HHS could garner attention through examination of other states' policies, allowing for their mitigation in this cooperative federalism approach. The horizontal information sharing of this interstate forum might thus respond-functionally if not formally-to the concern expressed in New York v. United States that vertical accountability is diminished when elected officials shift authority between levels of government. 505 U.S. 144, 182-83 (1992).
306. See supra note 207 (describing role of experimentalist central agency in setting policy goals and providing tools for local deliberation).
307. See generally National Governors Association, at http://www.nga.org (last visited Sept. 25, 2008) (describing structure and activities of NGA). In this model, it is always in the interest of a visible, politically accountable (and often ambitious) leader to show progress during her tenure at the helm of a national organization, placing a premium on near-term achievement.
308. Rubin and Feeley claim innovation is just as likely (or more) to flow from a topdown, decentralized structure than organic, state-led initiatives. Rubin & Feeley, supra note 191, at 911-14. But "home-grown" initiatives driven by local needs and autonomous officials give states greater ownership over projects and increase the incentive to ensure their success, as compared to projects handed down from Washington.
309. Cf. supra note 166 and accompanying text (noting need for physicians to be invested in EMR adoption projects).
310. See supra notes 213-214 and accompanying text (describing experimentalism's information exchange and feedback mechanisms).
311. See infra Part III.B.3 (proposing state information sharing requirement).
312. This is not to say technological problems are unimportant. Even assuming technical solutions are available and would not benefit from state-level experimentation, there remains a need for coordination of which solutions will be employed and how systems will connect across state lines. Small-scale trials in cross-border regions will provide lessons that accrue to the benefit of all interstate data transactions.
313. E-mail from Liesa Jenkins, Executive Dir., CareSpark, to author (Jan. 28, 2008, 17:32 EST) (on file with the Columbia Law Review).
314. States' desire to come together and learn from one another is already apparent. States have eagerly extended their participation in the multistate privacy and security initiative, see supra notes 194-196 and accompanying text, and continue to participate in the NGA State Alliance and the Consensus Project, McCloskey, supra note 198.
315. Found, of Research and Educ. of Am. Health Info. Mgmt. Ass'n, State Level Health Information Exchange Consensus Project, Preliminary Report 9 (2007), available at http://www.staterhio.org/conference/documents/SLHIE-report-final- draft-10-16-07-print-final.pdf (on file with the Columbia Law Review). The final report omitted this recommendation. See Consensus Project, supra note 115.
316. See Dep't of Homeland Sec., State Homeland Security Contacts, at http://www.dhs gov/xgovt/editorial-0291.shtm (last updated Sept. 19, 2008) (on file with the Columbia Law Review) (listing state officials serving as DHS state contacts).
317. This common sense step was taken without any official statutory or regulatory authorization. E-mail from Susan Courtwright Rodriguez, Policy Advisor, Dep't of Homeland Sec., to author (Jan. 11, 2008, 1425 EST) (on file with the Columbia Law Review).
318. See Dimitropoulos, supra note 194, at 7-2 (identifying knowledge gap at state level regarding federal HIT initiatives).
319. See Dorf & Sabel, supra note 11, at 314 (explaining experimentalism s accountability benefits).
320. See supra notes 208-211 and accompanying text (discussing shortcomings of design standard regulations).
321. Cf Liebman & Sabel, supra note 200, at 291 (clung New York school official, Richard F. Elmore, for idea that internal accountability and normative consensus must precede external institutional accountability).
322. Merritt, Interview, supra note 135.
323. It would remain difficult, however, for the state coordinator-who is likely to have a limited budget and staff-to induce agency heads to place long-term goals ahead of their programs' immediate needs. This is a principal reason why political support from the highest levels is necessary for state-level HIT efforts to prosper. Telephone Interview with Antoine Agassi, Dir., Tenn. eHealth Council (Jan. 2, 2008) (on file with the Columbia Law Review) [hereinafter Agassi, Interview].
324. Merritt, Interview, supra note 135.
325. See Dorf & Sabel, supra note 11, at 302-03 (noting collaboration between diverse participants produces "comparisons among . . . diverse alternatives");
326. Kruse, supra note 205, at 727 (noting experimentalism exploits information by pooling and distributing data about local performance, and by comparing performance of peers, thereby fostering accountability and transparency); cf. Madison, supra note 87, at 1621-23 (discussing "market channeling regulation" that enhances data available to consumers)
327. eHealth Initiative, State of the Field, supra note 102 (surveying ongoing health information exchange initiatives to find, even among active exchanges, thirty-nine remained in planning stages, compared to forty-two that were fully operational and thirty-six in implementation).
328. See supra Part III.B.1 (proposing interstate forum and considering leadership
329. States might be asked about their receipt of federal funds, state appropriations and outside funding; their distribution of those funds; the number of persons for whom electronic records were utilized and transferred; the number of physicians and hospitals using various components of HIT; aggregate health indicators for citizens involved in state and local programs; cost and quality differences between local initiatives; and information regarding the construction and implementation of data exchange capabilities
330. See Madison, supra note 87, at 1599-1601, 1607-13 (discussing emergence of healthcare report cards). The report cards required by No Child Left Behind (NCLB) education reforms are one specific analog.
331. See Liebman & Sabel, supra note 200 at 289-90 (describing scope and results of NCLB report cards).
332. For instance, states might eventually report the rate of adverse drug interactions for patients served by electronic versus paper prescribing, as opposed to the absolute number of e-prescriptions delivered.
333. See Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 Harv. L. Rev. 1015, 1072 (2004) (noting transparency is accountability norm" and "learning device . . . intended to facilitate practices of disciplined comparison").
334. See Liebman & Sabel, supra note 200, at 192 (suggesting experimentalist accountability framework may ignite "a race to the top" through information exchange among reforming states and political consequences for lagging states).
335. Id.
336. See George F. Will, Editorial, . . . and Responsibility; Is Embarrassment the Right Lever to Use?, Wash. Post, June 23, 2005, at A27 (observing predictable state resistance to federal informational scheme meant to "shame" poor performers).
337. The regime might be challenged as an unconstitutional commandeering of the state executive. See Printz v. United States, 521 U.S. 898, 935 (1997) (overturning Brady Act interim provisions requiring firearm background checks by chief law enforcement officers of state jurisdictions). But given the ubiquity of federal reporting requirements, the Court has strained to except such mandates from the constitutional restriction on commandeering.
338. Id. at 936 (O'Connor, J., concurring) ("[T]he Court appropriately refrains from deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid."). Even a court otherwise sympathetic to commandeering concerns might uphold such a requirement under the commerce power because patient health data are, in a sense, items in the stream of interstate commerce.
339. Cf. Reno v. Condon, 528 U.S. 141, 148 (2000) (noting automobile information sold by states is used in interstate commerce and therefore makes congressional legislation constitutional). States, however, may point to the historical absence of interstate trafficking in patient health data and a greater imposition on sovereignty than in Reno. And in light of privacy concerns, HIT proponents are unlikely to appreciate the argument that medical records are just another article in interstate commerce. In any case, these risks make the Spending Clause, U.S. Const. art I, § 8, cl. 1, a likelier basis for federal HIT authority than the Commerce Clause, id. art. I, § 8, cl. 3, regardless of whether that authority is linked to preexisting or new federal spending.
340. See South Dakota v. Dole, 483 U.S. 203, 206 (1987) (upholding under Spending Clause federal highway funding conditioned upon states increasing drinking age).
341. Cf. Dorf & Sabel, supra note 11, at 425-28 (characterizing conditional spending doctrine as mere "formality" that does not meaningfully protect state autonomy).
342. HHS controls vast amounts of clinical information from Medicare claims transactions that could be used to increase the usefulness of any state health records initiative. Heekin, Interview, supra note 130.
343. See Peter L. Strauss et al., Gellhorn & Byse's Administrative Law 279 (rev. 10th ed. 2003) ("Agencies may seek to elicit cooperation by offering benefits conditioned upon the supply of information. This may seem more voluntary, when (for example) a firm is offered a choice between a cooperative regime, and one in which the agency assumes police responsibilities.").
344. See Dorf & Sabel, supra note 11, at 428 (" [Congress] must announce general, yet limited goals.").
345. See id. at 267 ("Regulatory agencies set and ensure compliance with national objectives by means of best-practice performance standards based on information that regulated entities provide in return for the freedom to experiment with solutions they prefer.").
346. See Karkkainen, Splitting, supra note 202, at 488 (noting "reserved coercive power ... of the center to intervene for purposes of forcing reconsideration and reconfiguration of local experiments gone seriously awry").
347. See id. at 488 (noting disagreement among New Governance scholars regarding mechanism for achieving compliance through coercion).
348. See Kruse, supra note 205, at 681-83 (observing experimentalism's tendency to favor transparency over punitive accountability measures when the two are in tension).
349. See supra notes 113-119 and accompanying text.
350. To the extent states are deterred from investing in HIT by fear of obsolescence or incompatibility with other state systems, they do in fact internalize this risk.
351. See Dorf & Sabel, supra note 11, at 430 (noting benefits of performance over design standards).
352. See id. at 278-79 (criticizing agency attempts to set uniform standards across market sectors, in light of firms' ever-changing responses to market conditions).
353. Id. at 430.
354. Tennessee RHIOs made a similar choice, adopting an opt-out policy administered by clinicians. Agassi, Interview, supra note 247. Early consensus on this basic question will avoid a cosdy and disruptive reconciliation of longstanding but incompatible privacy practices in the future.
355. Cf. Carol C. Diamond & Clay Shirky, Health Information Technology: A Few Years of Magical Thinking?, 27 Health Aff. w383, w385 (2008), at http://contenthealth affairs.org/cgi/content/short/hlthaff.27.5.w383 (on file with the Columbia Law Review) (urging incremental standardization in which "basic standards . . . [are] created and revised," demanding acceptance of "a high degree of underlying variability" initially).
356. One example is mandatory e-prescribing, which is universally acknowledged as a safer and more efficient alternative to paper-based prescriptions. Nancy Ferris, $3 Billion Annual Savings Estimated for Medicare E-Prescribing, Gov't Healdi IT, Mar. 4, 2008, at http://www.govhealthit.com/online/news/350249- 1.hunl (on file with the Columbia Law Review).
357. Congress enjoys vast audiority to regulate the interstate healthcare market. Kevin Outterson, Health Care, Technology and Federalism, 103 W. Va. L. Rev. 503, 528 (2001) (noting Congress's plenary power over healthcare under Commerce and Spending Clauses). If Congress wished to protect states' primary role in HIT experimentation while reserving authority to rein in outlier states, it could do so through conditional preemption.
358. See New York v. United States, 505 U.S. 144, 167-68 (1992) (recognizing congressional power to give states choice of regulating direcdy per federal standards or acceding to preemptive federal regulation);
359. FERC v. Mississippi, 456 U.S. 742, 764-65 (1982) (same).
360. See Kruse, supra note 205, at 730 n.395 (acknowledging "tension between uniformity and flexibility").
361. Colorado has passed legislation requiring its newly-formed Health Information lechnology Advisory Committee to pursue an interstate compact with western states regarding HIT interoperability and data exchange. Colo. Rev. Stat. Ann. § 25-1-1402 (West 2008).
362. This or other self-policing arrangements might be challenged as unconstitutional state accumulations of authority over interstate commerce, see New York, 505 U S at 182-83 (holding states cannot consent to unconstitutional enlargement of congressional power), or as an illegal application of the interstate compact statute,
363. U.S Steel Corp v Multistate Tax Comm'n, 434 U.S. 452, 467-71 (1978) (prohibiting agreements that increase state power to detriment of federal authority). But if Congress supported a self-policing approach, its authority over the interstate healthcare market would allow it to ratify the arrangement. See supra note 276.
364. This regime would resemble the current model of ERISA preemption of state Insurance regulation. See Edward A. Zelinsky, The New Massachusetts Health Law-Preemption and Experimentation, 49 Wm. & Mary L. Rev. 229, 250-53 (criticizing ERISA's broad preemption of state healthcare reforms).
365. Cf. Dorf & Sabel, supra note 11, at 354 ("[B]y pooling knowledge . . . with staff at other locations, agencies can identify emerging best practices." (emphasis omitted))
366. See generally Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government 54 Colum L. Rev. 543, 546-52 (1954) (identifying state participation and protection in national legislative process).
367. But see Gillian E. Metzger, Administrative Law as the New Federalism, 57 Duke L.J. 2023 (2008) (arguing administrative law contains important federalism-reinforcing elements, as evidenced by several recent Supreme Court decisions)
368. Cf. Martin H. Redish & Shane V. Nugent, The Dormant Commerce Clause and the Constitutional Balance of Federalism, 1987 Duke L.J. 569, 592-94 (describing reversal of "political inertia" where democratically unaccountable judiciary (rather than Congress) strikes down state laws burdening interstate commerce, which forces states to seek congressional legislation before regulating and thereby suppresses state regulation)
369. Id.
370. These roles are reminiscent of traditional agency rulemaking (establishing consensus practices) and adjudication (determining validity of outlier state policies). The salient difference is the panel's diverse membership, which reflects the importance of diverse decisionmakers in a collaborative regulatory framework. See Freeman, Private Role, supra note 222, at 546-49 (discussing benefits of diverse decisionmaker group).
371. Analogs with substantially less authority can be found in the sixteen member AHIC group that advises the HHS Secretary, HHS, Community, supra note 224,
372. and the HITSP panel created to establish data standards, HHS, Major Accomplishments, supra note 182, at 3-4.
373. These incentives resemble an important component of the No Child Left Behind Act, which uses detailed testing and information sharing requirements to induce state accountability and improvement. See Will, supra note 258 (discussing federal goal to improve performance and reduce inequality in K-12 education through detailed reporting requirements, alternatively described as "public shaming").
374. Cf. Dorf & Sabel, supra note 11, at 430 (noting performance standards minimize "disruptive effect of federal agendas on state agendas" by giving states flexibility to achieve goals in accord with preexisting state commitments).
375. Otherwise state policymakers are unlikely to have the time or awareness to seek out useful data, even when it is publicly available.
376. See Dorf, After Bureaucracy, supra note 207, at 1266-67 (describing experimentalism as "a system of decentralized yet centrally monitored government in which local, democratically accountable units are free to set goals and to choose the means to attain them"); see also Karkkainen, TRI, supra note 200, at 293 (noting absolute freedom of firms to select preferred targets, timetables, and strategies under TRI).
377. See Frohlich et al., supra note 105, at w590-91 (suggesting approach of "radical incrementalism" is superior to "all-at-once design" pursued by failed Santa Barbara RHIO).
378. For two examples of the incremental approach, see Alfreds et al., supra note 64 at 13 (noting success of nonprofit Utah RHIO in reducing costs by electronically transmitting claims and verifying eligibility);
379. id. at 36 (reporting Massachusetts initiative offering common interface for administrative transactions).
380. Liebman & Sabel, supra note 200, at 192, 294.
381. See supra Part III.B.4.
382. See Kruse, supra note 205, at 730 (noting experimentalismo tension between uniformity and flexibility).
383. See Dorf & Sabel, supra note 11, at 340 (arguing decisionmaking is presumptively decentralized ... and fragmented," with the primary federal role limited to encouraging and coordinating experimentation).
384. See Kruse, supra note 205, at 730 n.395 ("[T]he tension between uniformity and flexibility . . . define [s] a challenge and an obstacle to the practical implementation of experimentalist governance on a large scale.").
385. This is similar to the theory upon which CCHIT, which certifies HIT products for security, interoperability, and functionality, is premised. See supra notes 173, 225 and accompanying text.
386. See supra Part III.B.4.
387. See id.
388. Regarding the problem of information cascades in the law, see Adrian Vermeule, Common Law Constitutionalism and the Limits of Reason, 107 Colum. L. Rev. 1482, 1497-99 (2007);
389. see also Zaring, supra note 202, at 307 (asking how often bureaucrats in experimentalist schemes will depart from existing norms, in light of network effects and information cascades).
390. See Zaring, supra note 202, at 307 (questioning actual frequency of "constant improvement" after identification of best practice, due to lack of impetus for continued experimentation);
391. see also Kruse, supra note 205, at 719 (noting possibility local Wisconsin police departments will "decline the invitation to engage in careful reflective study" offered by state eyewitness identification reforms "and unreflectively adopt the model policy . . . promulgated by the Wisconsin Department of Justice").
392. See Tushnet, supra note 216, at 358 (observing that Liebman and Sabel's school reform "case studies are curiously static" and "do not show one level actually interacting with another, or . . . emulation of best practices").
393. Kruse, supra note 205, at 649-50.
394. See supra notes 12-14 and accompanying text.
395. See Zaring, supra note 202, at 307 (questioning willingness of regulated parties to deviate from identified best practice in experimentalist regime).
396. See Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458, 521-22 (2001) (recounting countervailing pressures for corporations to create uniform rules and reporting mechanisms to reduce workplace discrimination, but to limit the amount of information produced regarding potentially litigated problems);
397. see also Karkkainen, TRI, supra note 200, at 294 (qualifying benefits of self-reporting regulations by noting possibility of underenforcement, persistent nonreporting, and monitoring difficulties).
398. See Kruse, supra note 205, at 731 ("Obfuscation and self-interested gaming of the data used to measure performance threaten the systems of internal learning and external monitoring upon which the democratic experimentalist paradigm depends.").
399. See Sturm, supra note 305, at 560-61 (noting possibility of privileging data produced for self-evaluation).
400. To the extent public servants are more trustworthy in their reporting than private actors, self-reporting regimes may prove more useful in areas where states or localities collaborate with private parties. And where collaborating parties submit data together, the possibility of whisdeblowing increases the risk to would-be cheats.
401. See Kruse, supra note 205, at 731 ("[The] tension [between transparency and accountability] is acknowledged in the democratic experimentalist literature, with a bias toward transparency and against sanction except in the most egregious cases of noncompliance or substandard performance.").
402. Cf. Dorf, After Bureaucracy, supra note 207, at 1268 (observing Clean Air Act is not a "perfect exemplar" of experimentalism because it "does not guarantee rights of participation for stakeholders" that could participate in "formulation, implementation, and refinement of state and local standards").
403. See supra Part III.B.1.
404. See supra Part II.A.