Publications: Update - HITECH Incentives for Electronic Health Records: Final Rules

Under the Health Information Technology for Economic and Clinical Health Act (HITECH Act), the Centers for Medicare & Medicaid Services (CMS) is authorized to provide federal incentive payments to eligible hospitals, eligible professionals and qualifying Medicare Advantage organizations for the “meaningful use” of “certified” electronic health record (EHR) technology. After 2015, the incentives are phased out and the HITECH Act provides for reduced reimbursement for providers who do not adopt EHR technology and achieve meaningful use.

Final Meaningful Use Rule

CMS has released a final rule containing the initial definition of “meaningful use” which revises the proposed rule in response to the thousands of comments received.

Under the proposed rule, to qualify as a meaningful user, an eligible hospital or professional would have had to demonstrate that all of 23 objectives/measures for eligible hospitals and 25 objectives/measures for eligible professionals were met. Responding to comments that such an “all or nothing” approach was too high a barrier for incentive payments, the final rule now incorporates a “core set” of required objectives with associated measures and a “menu set” of objectives with associated measures. In order to qualify as a meaningful EHR user for 2011-2012, an eligible hospital or professional must meet the measure for each objective in the core set (14 for eligible hospitals and 15 for eligible professionals) and five of the ten objectives in the menu set (selected by the eligible hospital or professional).

Core Set Objectives and Measures

Core set objectives and measures include, among other objectives, use of computerized physician order entry (CPOE) (>30% threshold), e-prescribing (>40% for eligible professionals), electronically exchanging key clinical information (must perform at least one test of certified EHR technology’s capacity to do so) and maintaining active medication lists and medication allergy lists (>80% of all patients).

Menu Set Objectives and Measures

Menu set objectives and measures include, among other objectives, recording advance directives for patients age 65 and older (>50% of unique patients of eligible hospitals in the age range) and incorporating clinical lab test results into EHR as structured data (>40% of all clinical lab tests ordered).

Final Standards and Certification Criteria

The Office for the National Coordinator for Health Information Technology (ONC) also issued a final rule that identifies the standards and certification criteria for the testing and certification of EHR technology and establishes a temporary certification program. The Certification Commission for Health Information Technology (CCHIT), Drummond Group Inc. and InfoGard Laboratories, Inc. have been selected as ONC-authorized testing and certification bodies that can certify EHR technology. The ONC maintains an ongoing list of certified EHR technology which can be accessed here: http://onc-chpl.force.com/ehrcert.

Recommendations for Implementing EHR Technology

In implementing an EHR system and seeking incentive payments under either the Medicare incentive program or the Medicaid incentive program, hospitals and eligible professionals will want to make sure that the EHR system is capable of meeting the final meaningful use objectives and measures and final certified technology standards. These capabilities should be incorporated in appropriate representations and warranties in the EHR agreement.

For assistance with seeking incentive payments, negotiating vendor agreements for EHR technology or additional information on Stage 1 objectives and measures and certification standards, please contact Julie E. Treumann, Valerie Breslin Montague or any member of the Ungaretti & Harris LLP healthcare group.