On February 17, 2009, President Obama signed the Health Information Technology for Economic and Clinical Health (HITECH) Act, which was a subpart of the stimulus bill. HITECH authorizes the Medicare and Medicaid programs to pay financial incentives to providers to adopt electronic health record (EHR) technology. Starting in 2011, physicians and hospitals that demonstrate meaningful use of a certified EHR system will be eligible to receive incentive payments equal to a percentage of their Medicare/Medicaid charges, subject to a maximum cap. After 2015, physicians and hospitals who are not using EHR systems will be penalized with reductions in their Medicare/Medicaid reimbursement.
HITECH required the Department of Health and Human Services (HHS) to issue regulations defining the term “meaningful use.” On December 30, HHS issued a 556-page package of proposed regulations for public comment. As expected from earlier indications, HHS decided to make the definition of “meaningful use” a moving target. The proposed rules are only the first of three phases of regulations, and they only cover the initial years of the incentive program. HHS says that the later two phases will have more stringent requirements for demonstrating “meaningful use.”
Even though the proposed rules are the least stringent we can expect, they are not undemanding. In order to demonstrate “meaningful use,” a physician must demonstrate that his or her use of an EHR system meets 25 different requirements (23 for hospitals). Those requirements include: (1) the use of computerized physician order entry (CPOE); (2) the ability to generate electronic lists of medications and allergies; (3) the electronic incorporation of lab results into the medical record; (4) e-prescribing; (5) medication reconciliation; and (6) the capability to electronically submit information to the government. In this first phase, physician and hospitals do not have to demonstrate 100% compliance with the requirements. For example, a physician must use CPOE for 80% of all orders and is required to use e-prescribing for 75% of his or her prescriptions. Those will increase to 100% compliance in later years.
As part of the “meaningful use” requirements, HITECH obligates physicians and hospitals to electronically submit certain Clinical Quality Measures to the federal government. The proposed rule includes lists of quality measures applicable to hospitals and physician specialties. For example, primary care physicians are expected to submit electronic reports on 29 different quality measures, surgeons 6 measures, and cardiologists 10 measures. HHS has not yet finalized the electronic format it will use to accept the quality reports.
HITECH’s incentives are tied to the meaningful use of a “certified” EHR system. The Office of the National Coordinator for Health Information Technology (ONC) is responsible for issuing certification requirements for EHR technology. It issued its own proposed rule at the same time HHS released its proposed “meaningful use” rule. ONC and HHS tied their regulations to one another, so a “certified” EHR system is one that has the functionality necessary for a physician or hospital to satisfy the “meaningful use” requirements. That means that EHR certification standards will also evolve and become more stringent over time.
The “meaningful use” regulations are only proposed at this time, and the 60-day notice and comment period will not close until March. The rules could change before they are finalized. Houston Harbaugh is closely monitoring this area, and we apprise you of any developments. Attached you will find an article recently published on this subject. If you have any questions, please contact one of the members of our Health Care Law Group listed below.
Robert Ralston, an associate with Houston Harbaugh, P.C., practices health care law, business law, and commercial litigation. He can be reached at (412) 288-2265 or ralstonrhc@hh-law.com.