CMS Redefines Meaningful Use for EHR Incentive Program
On July 13, 2010, the Centers for Medicare and Medicaid Services ("CMS") in conjunction with the Office of the National Coordinator for Health Information Technology ("ONC") issued two final rules in order to implement the Electronic Health Records ("EHR") incentive program under the Health Information Technology for Economic and Clinical Health Act ("HITECH"). The HITECH Act promotes the adoption of electronic health records in a meaningful way by providing financial incentives for certain Medicare and Medicaid providers, including hospitals, critical access hospitals ("CAHs") and eligible professionals ("EPs") who are able to demonstrate "meaningful use" of EHR Technology that has been certified under federal standards. Dr. Donald Berwick, the new head of CMS, on his second day on the job, stated that EHRs are inevitable, and would usher in "better, smoother care, more reliable care." Kathleen Sebelius, Secretary of DHHS, has stated less than 20 percent of physicians and 10 percent of hospitals make use of EHRs.
The CMS rule issued on July 13, 2010 ("CMS Rule") clarifies the specific criteria and objectives that providers must achieve in Phase I and Phase II (for payment years 2011 and 2012) in order to qualify for incentive payments. The ONC rule, also issued on July 13, 2010 ("ONC Rule"), specifies the particular technical capabilities that EHR technology must meet in order to be certified, and lays out certain procedural steps to be taken in order to obtain such certification.
The new final rules on "meaningful use" are intended to incentivize not only implementation of EHRs, but use of EHRs to create returns in the areas of safety, quality and efficiency of care. In order to jump start the implementation of a nationwide EHR system, the federal government has committed (through HITECH) incentive payments totaling $27 billion over ten years. Hospitals are eligible to receive as much as $2 million, and EP's as much as $44,000 through Medicare and $63,750 through Medicaid per clinician.
Originally, CMS's January 16, 2010 proposed rule defined 23 mandatory objectives for hospitals and 25 mandatory objectives for physicians and other EPs in order to report and demonstrate their "meaningful use" of EHRs. In response to comments to CMS, the final CMS Rule reduces the number of criteria dramatically, instead focusing on "core" criteria and a "menu" of objectives from which providers can choose to comply based upon their particular circumstances. Hospitals will now be required to meet 14 core objectives (Phase I) and 5 out of 10 optional criteria (Phase II), while EPs will now have to meet 15 mandatory criteria (Phase I) and 5 out of 10 optional criteria (Phase II). The new rules provide an increased opportunity for some providers to qualify for incentive payments for 2011-2012.
The new CMS rules:
- Define "core" criteria that all providers must meet to qualify for incentive payments and also additional criteria that providers have a limited choice to meet in a minimal manner in order to demonstrate compliance. There is increased flexibility in addressing some of the criteria, choice as to the "menu" criteria and improvements in the flexibility in which some of the criteria can be met.
- Include in the '"core" objectives basic EHR functions that require the entry of certain basic data in the EHR including patient's vital signs, demographics, active medications and allergies, up-to-date health issues, current and active diagnosis and smoking status.
- Require the design of EHR systems to facilitate "meaningful use" to realize improvements in safety, quality and efficiency of care. The initial features are intended to enable clinicians to utilize basic elements of their systems to provide for better and more efficient clinical outcomes. The Phase I core criteria therefore requires the deployment of basic clinical decision support tools.
- Decrease the threshold for implementation of electronic prescriptions from 75% to 40% of all prescriptions.
- Outline the beginning of a phased approach to implement the requirements for demonstrating "meaningful use" base upon currently available technological capabilities and more readily achievable criteria which have been refined in response to public comment to the proposed rule.
Certification of EHR Systems:
The final ONC Rule provides standards and certification criteria for EHR systems. The certification criteria adopted in the final ONC Rule adopts a temporary certification program for health information technology. ONCs final rule identifies technical standards which must be met in the certification process. These standards must be met as a precondition to qualifying for the above incentive programs.
Finally, in conjunction with the final CMS Rule and the final ONC Rule, CMS has announced that it is continuing to work with the Office for Civil Rights ("OCR") and ONC to address the sensitive privacy and security protections under the HITECH Act as a result of the adoption of these EHR initiatives.
If you would like additional information regarding this Legal Update, please contact Charles M. Johnson at cmjohnson@fbtlaw.com, Billy J. Mabry at bmabry@fbtlaw.com, or any other attorney in Frost Brown Todd's Health Law Practice Group.
