On July 13, 2010, three of the most important challenges facing the country converged with the adoption by the Department of Health and Human Services (HHS) of regulations to implement electronic health records (EHR). The three issues – economic development and job creation, healthcare reform, and effective use of information technology entered a new and very promising stage.
A key provision of the American Recovery and Reinvestment Act (ARRA) of 2009 (the Obama Stimulus Bill) was the enactment of the Health Information Technology for Economic and Clinical Health (HITECH) Act. This provision supports the adoption of electronic health records (EHR) by providing financial incentives through Medicare and Medicaid for hospitals and qualified individual healthcare professionals who implement and demonstrate "meaningful use" of EHR. Under ARRA, as much as $27 Billion Dollars may be spent in incentive payments over 10 years to eligible professionals who may receive as much as $44,000.00 under Medicare and $63,750.00 under Medicaid, and hospitals may receive millions of dollars for implementing meaningful use of certified EHRs under both Medicare and Medicaid.
Health and Human Services (HHS) Secretary Sebelius announced the adoption of final rules to support "meaningful use" of electronic health records, which lays the groundwork for the incentive payments program to be completed in 5 years, after which providers who do not comply with new EHR regulations will be subject to Medicare payment cuts. One of the two companion final rules, issued by the Centers for Medicare and Medicaid Services (CMS), defines the minimum requirements that providers must meet through the use of EHR technology in order to qualify for the payments. The other rule, issued by the Office of the National Coordinator for Health Information Technology (ONC) identifies the standards and certification criteria for EHR technology.
The CMS rule, proposed on January 13, 2010, received more than 2,000 comments and was modified to incorporate changes designed to make the requirements more flexible, while meeting the goals of the HITECH Act. The CMS final rule modifies the proposed rule to address many stakeholder concerns while retaining the intent and structure of the incentive programs. For example, under the proposed rule, eligible professionals had to meet 25 requirements (23 for hospitals) in their use of EHRs, whereas the final rules divides the requirements into a "core" group of requirements, and an additional "menu" of procedures from which providers may choose. This "two track" approach would appear to help providers to meet the most basic elements of meaningful EHR in order to qualify for incentive payments, while giving providers flexibility to meet their individual needs in working toward full EHR use.
The ONC rule, adopted on June 24, 2010, identifies the standards and certification procedures for EHR technology and establishes a temporary certification program for health information and technology so eligible professionals and hospitals may be assured that their systems are capable of performing the required functions.
The adoption of these two rules sets in motion a timetable spelled out in the HITECH Act, which provides that payments for Medicare providers may begin as soon as October, 2010, with ONC accepting applications for entities that seek approval as an ONC-authorized testing and certification body on July 1, 2010. As part of the implementation process, HHS is establishing a nation-wide network of Regional Extension Centers to assist providers in adopting and using in a meaningful way certified EHR technology.
The HITECH Act and these rules create an excellent opportunity for qualified healthcare providers and hospitals to maximize the benefits of electronic records and other technology, while receiving substantial financial benefits for doing so. Seldom does concerted action by the Congress, the White House and an executive department of the federal government address such a far reaching and significant range of issues confronting the country. The healthcare and information technology industries should carefully evaluate this combined action because these new and challenging opportunities, if undertaken in a timely and effective manner, will have immediate and long-term impact on their operations.
A CMS/ONC fact sheet on the rules as well as technical fact sheets on CMS's rule can be found by clicking here. Additionally, a technical fact sheet on ONC's standards and certification criteria final rule is available here.
Links to Rules via Federal Register:
Paul S. Quinn is a Partner in Nossaman's Washington DC office and has more than 45 years of legal and political experience in public policy advocacy. He has represented large and small companies, individuals, foreign governments, trade associations, and universities on a range of political, legislative, and regulatory issues. He can be reached at 202.887.1413 or pquinn@nossaman.com.