Health IT Law Blog : Health IT Law Blog : Post & Schell: Law Firm : HIT & Electronic Health Records

Centers for Medicare and Medicaid Services (CMS) released the final requirements for Stage 2 of Meaningful Use, which health care providers must meet in order to qualify for incentives during this stage of the program, and criteria that electronic health records must meet to achieve certification.

Via CMS press release:

The requirements announced today:

Make clear that stage two of the program will begin as early as 2014. No providers will be required to follow the Stage 2 requirements outlined today before 2014.
Outline the certification criteria for the certification of EHR technology, so eligible professionals and hospitals may be assured that the systems they use will work, help them meaningfully use health information technology, and qualify for incentive payments.
Modify the certification program to cut red tape and make the certification process more efficient.
Allow current “2011 Edition Certified EHR Technology” to be used until 2014.

The CMS final rule also provides a flexible reporting period for 2014 to give providers sufficient time to adopt or upgrade to the latest EHR technology certified for 2014.

You can find a fact sheet on CMS’s final rule on Stage 2 here and a detailed fact sheet on ONC's standards and certification criteria here.

• Print
• Comments
• Trackbacks
• Share Link

HHS announced today that the government intends to make it easier for healthcare providers to adopt electronic health records (EHRs).  As part of this initiative, HHS decided to extend the deadline for meeting Stage 2 of Meaningful Use until 2014. Via HHS press release:

Under the current requirements, eligible doctors and hospitals that begin participating in the Medicare EHR (electronic health record) Incentive Programs this year would have to meet new standards for the program in 2013. If they did not participate in the program until 2012, they could wait to meet these new standards until 2014 and still be eligible for the same incentive payment. To encourage faster adoption, the Secretary announced that HHS intends to allow doctors and hospitals to adopt health IT this year, without meeting the new standards until 2014.

HHS also trumpeted the results of a CDC survey which found that more than half of U.S. physicians plan to take advantage of the EHR incentive program, and that the rate of EHR adoption doubled between 2008 and 2011, from 17% to 34% among physicians.

Of course, HHS did not comment on how low those numbers are. The fact remains that about two-thirds of U.S. physicians have not adopted electronic health records, and continue to use, in Secretary's words, the same technology as Hippocrates. The Obama administration is relying heavily on Regional Extension Centers and training efforts in order to aid healthcare enterprises in adopting EHRs.

We will update this post with links to any relevant regulations if and/or when HHS publishes them in the Federal Register.

"We Can't Wait: Obama Administration takes new steps to encourage doctors and hospitals to use health information technology to lower costs, improve quality, create jobs," HHS press release (November 30, 2011).

• Print
• Comments
• Trackbacks
• Share Link

HHS released the first numbers regarding its Meaningful Use incentives program, established by the HITECH Act of 2009. Unsurprisingly, most eligible professionals and hospitals receiving funds this year qualified for incentive payments under Medicaid, rather than Medicare, because Medicare has a higher threshold for receiving such payments. Medicare requires the eligible professional or hospital to achieve and demonstrate meaningful use, while Medicaid mandates only adoption, implementation or upgrade of existing systems. 

Nevertheless, the extent of the disparity was somewhat surprising: only about 6% of eligible hospitals and 3% of eligible professionals qualified for meaningful use incentives under Medicare.  Via Modern Healthcare:

So far, Medicaid program payments for hospitals, physicians and other eligible professionals that have adopted, implemented or upgraded to a certified EHR system have totaled $389 million. Only $264 million has been paid under the Medicare program, which has a higher eligibility threshold, requiring providers to demonstrate that they are meaningfully using their certified EHR system.

• Print
• Comments
• Trackbacks
• Share Link

CMS announced that the online Attestation System for the Medicare EHR Incentive Program will launch on April 18, 2011. Eligible professionals and eligible hospitals will be able to use this online portal to self-attest to meeting the Meaningful Use criteria.

CMS also released a preview of the Attestation System. This preview includes attestation screenshots and is intended to give examples of what the attestation process will look like. CMS promised to release additional information about the attestation process soon, including "User Guides" that will give step-by-step instructions for completing attestation, along with educational webinars that describe the attestation process in depth.

Finally, CMS noted that providers will follow a similar process using their state's Attestation System. Such providers may find their state's scheduled launch dates of their Medicaid EHR Incentive Program by clicking here.

You can download the preview by clicking here.

For more information, please visit CMS's EHR Incentive Program web site.
 

• Print
• Comments
• Trackbacks
• Share Link

On July 13, 2010, CMS issued the final rule defining "meaningful use" and establishing the parameters and requirements for eligible professionals, hospitals and other providers to receive incentive payments provided under the HITECH Act for widespread adoption of electronic health records.  According to CMS, the key changes included in the final rule (from the meaningful use NPRM published in the Federal Register on January 13, 2010) include:

• Greater flexibility with respect to eligible professionals and hospitals in meeting and reporting certain objectives for demonstrating meaningful use. The final rule divides the objectives into a “core” group of required objectives and a “menu set” of procedures from which providers may choose any five to defer in 2011-2012. This gives providers latitude to pick their own path toward full EHR implementation and meaningful use.
• An objective of providing condition-specific patient education resources for both EPs and eligible hospitals and the objective of recording advance directives for eligible hospitals, in line with recommendations from the Health Information Technology Policy Committee.
• A definition of a hospital-based EP as one who performs substantially all of his or her services in an inpatient hospital setting or emergency room only, which conforms to the Continuing Extension Act of 2010
• CAHs within the definition of acute care hospital for the purpose of incentive program eligibility under Medicaid.

You can view the PDF of the final rule on Meaningful Use by clicking here.

You can learn more about it from the HHS press release by clicking here.  Also, the New England Journal of Medicine published an excellent summary by Dr. Blumenthal of the changes included in the final rule; you can find this article by clicking here.

• Print
• Comments
• Trackbacks
• Share Link

Courtesy of the American Health Lawyers Association:

On April 15, 2010, President Barack Obama signed into law the "Continuing Extension Act of 2010" (Public Law 111-157). Section 5 of the Act contains "EHR Clarification" provisions which amend the definition of "hospital based eligible professional" that was created under the American Recovery and Reinvestment Act of 2009 (ARRA). As background, ARRA created incentives for the adoption and meaningful use of certified electronic health record (EHR) technology. However, the ARRA additions to the Social Security Act (42 U.S.C. 1395w-4) contained a limitation providing, in part, that no incentive payments would be made for these hospital-based eligible professionals.

This term was originally defined to include any professional who furnishes substantially all of the relevant services in a hospital "setting (whether inpatient or outpatient)."1 The new EHR Clarification provisions amend the ARRA definition/exclusion to only apply to a professional who furnishes substantially all of the relevant services in a hospital "in-patient or emergency room setting."2 The effect of this amended definition is that physicians practicing in an outpatient hospital setting are not excluded from and are now eligible to participate in the ARRA Medicare/Medicaid incentive programs.

• Print
• Comments
• Trackbacks
• Share Link

On April 13, 2010, the Wall Street Journal published two fascinating articles on health information technology issues.  In "Can Technology Cure Health Health Care?" author Jacob Goldstein examined the complexities and major risks of adopting electronic medical records.  Goldstein also suggested a few high-level policies necessary to combat such risks, including designing the software with patient care in mind (rather than focusing on billing and other administrative tasks); customizing the software to fit the unique needs of one's organization; and taking the time to implement the EMR in a carefully crafted, staged manner. 

The last recommendation seems to be indeed crucial to a successful EMR implementation, but it will likely put many healthcare providers trying to capitalize on HITECH incentive payments in a peculiar situation.  Such providers must carefully balance their need to achieve "meaningful use" in a short time frame, while preventing as many disruptions to patient care as possible.

In "Breaking Down the Barriers," Laura Landro examined the state of regional health organizations (RHIOs) and health information exchanges (HIEs). While RHIO/HIE's are still rare, the number of such electronic patient data exchanges grows every day.  In fact, according to the Journal, the number of RHIO/HIE's increased by 57% since last year.  Such exchanges are also likely to benefit from HITECH Act funding distributed by HHS. 

There is an interesting nexus between these two articles:  interoperability and exchange.  A successful widespread adoption of EMR technology seems to depend upon different EMRs talking to each other, and different - including competing - healthcare providers exchanging patient information.  While EMRs may only marginally improve patient care in each individual hospital, they are likely to have a far greater impact as part of a nationwide health information exchange.

"Can Technology Cure Health Care?" Wall Street Journal (April 13, 2010).

"Breaking Down the Barriers," Wall Street Journal (April 13, 2010).

• Print
• Comments
• Trackbacks
• Share Link

• Javelin Strategy & Research survey found over 275,000 cases of medical identity theft in 2009, with an average price tag greater than $12,000 per incident.  This is twice as many cases as in 2008.  Keeping health information safe is going to be of paramount importance in the next decade, especially considering the steep rise in use of electronic health records. According to Computerworld.com (citing a study by IDC, a research firm), "about a quarter of all Americans -- 77 million people -- already have an EHR, up from 14% from in 2009." By 2015, experts believe the number will reach up to 60%, partially due to the transformation of the health IT industry by the HITECH Act.

• In its comments to CMS regarding the meaningful use NPRM, College of Healthcare Information Management Executives (CHIME) insisted that the present "all or nothing" approach to achieving meaningful use is going to prevent significant numbers of eligible providers from receiving any incentive payments under the HITECH Act.  According to American Medical News:

Among CHIME's suggestions: a gradual implementation process that would allow physicians to qualify for incentives by achieving 25% of meaningful use objectives by 2011, 50% by 2013, 75% by 2015, and 100% by 2017.

'Without an approach that rewards progress or provides sufficient time, organizations with limited resources will likely have little chance of qualifying for payments, thus widening the 'digital divide' in the country,' CHIME wrote.

• Print
• Comments
• Trackbacks
• Share Link

Here are the slides from  our February 25, 2010 Webinar on Meaningful Use.  This webinar was first in a series, and focused on the critical definition of "meaningful use" of "certified EHR technology," as described in proposed regulations released and published by CMS pursuant to the HITECH Act on January 13, 2009.  Steve and I discussed:

• Key policy goals and objectives behind meaningful use

• Measures required to achieve meaningful use

• Structure of incentive payments under Medicare and Medicaid

• Eligibility requirements for professionals and hospitals

Our next webinar, to be held on Thursday March 18, 2010, from 1:00 to 2:00 PM, will focus on how to negotiate software and EHR licensing agreements and other transactional issues with respect to dealing with health IT vendors.

For more information, please contact me at vschick@postschell.com or 202-661-6945.

• Print
• Comments
• Trackbacks
• Share Link

Via Healthcare IT News:

The Certification Commission for Health Information Technology has certified 14 electronic health record products that pass muster for provider use under the American Recovery and Reinvestment Act of 2009 (ARRA).

"We believe it will be a challenge for providers who have not yet begun to evaluate products to purchase and implement EHR technology and achieve meaningful use in time for the 2011-2012 incentives," said Alisa Ray, the CCHIT's executive director. "We have received more than 30 applications for our 2011 certification programs – more than half of which are for the comprehensive program – and are announcing new certifications regularly so providers can begin to consider EHR technology that demonstrates compliance with the proposed federal standards."

According to Ray, the Preliminary ARRA 2011 program is a modular, limited certification and inspects technology only against the federal standards. It offers flexibility for health IT companies, developers and providers in meeting ARRA 2011-2012 certification requirements.

• Print
• Comments
• Trackbacks
• Share Link

According to Modern Healthcare, several HIT vendors, including GE Healthcare, NextGen Healthcare Information Systems, and Athenahealth, will guarantee that their EHR products will meet or "evolve to meet" the federal requirements for "meaningful use," even though such requirements have not been promulgated yet by CMS.  In fact,

Athenahealth recently upped the ante by guaranteeing that, not only will the company's AthenaClinicals Internet-based electronic health-record service meet federal standards, but the doctors who use it will receive a bonus payment for the 2011 program year under the terms of the [HITECH Act].

The HITECH Act provides for a first-year incentive payment of $18,000 for those eligible professionals who achieve meaningful use of certified EHR technology in 2011 or 2012, instead of a first-year payment of $15,000 thereafter.

Some vendors hope that such guarantees will spur activity in the market, persuading some reluctant healthcare providers not to wait until CMS issues its final "meaningful use" regulations next year.  There is also some doubt whether such guarantees apply to each vendor's existing customers or solely to new customers.

However, whenever a healthcare organization enters into an EMR purchase or license agreement, it must obtain strong warranties from the vendor that its product(s) and system will meet the applicable federal requirement standards at time of issuance of such standards, as well as for duration of the applicable license.  "Meaningful use" requirements will likely change over the life of a license, and a vendor's obligation to meet such evolving standards is absolutely essential.  Healthcare providers must also include proper remedies and appropriate carve-outs from vendor's limitation of liability for a vendor's breach of such warranties.

• Print
• Comments
• Trackbacks
• Share Link