On July 9, 2010, CMS published final "meaningful use" rules for qualifying for the substantial incentive payments provided for the adoption of Electronic Health Records (EHR) under the Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009. At the same time, HHS' Office of the National Coordinator for Health Information Technology published final rules governing the technical specifications for EHR technology, having previously released rules governing the organizations that would certify EHR compliance.
The proposed rule included 25 criteria (23 for hospitals) for demonstrating meaningful use of EHR, all of which had to be met to qualify for incentive payments. CMS received more than 2,000 comments arguing that such an "all or nothing" threshold would not be achievable in practice within the statutory time frame for the incentive program given the variety of challenges facing particular providers in different environments. The comments included alternative proposals such as accepting compliance with some percentage of criteria selected by the provider. Balancing achievability with the goal of ensuring that the adoption of EHR will in fact yield the desired benefits of reducing medical errors, improving quality and reducing costs, CMS got creative. It defined a "core" set of mandatory measures and a set of 10 additional measures from which any five could be deferred for Stage 1 of the program, roughly its first two years. For subsequent stages in which the bar will be raised, and for which the criteria have not yet been finalized, the deferred measures would become core measures.
In addition to making extensive modifications to the individual proposed objectives and how achievement will be measured and documented to qualify for payment, the final rule details the payment program itself. The measures are designed to ensure that EHR systems are not merely purchased but are in fact used extensively for specific purposes. While industry response to the final rule has been largely positive, the task of qualifying for the $27 billion in incentive payments under 864 pages of extremely proscriptive regulations remains daunting. Hospitals and physicians will need to work with certified EHR vendors, IT staff, and advisors to develop detailed plans and timetables in order to ensure not only that they qualify for the maximum available incentive payments during the program, but do not suffer reimbursement penalties that will begin in 2015 for failure to achieve meaningful use. The magnitude of the undertaking is difficult to overstate, but the rewards will be substantial.
Please contact any member of Waller Lansden's Healthcare or Intellectual Property practice groups at 800-487-6380 for more information.
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