Client Alert. CMS Releases Proposed Rule On Meaningful Use Of Electronic Health Record Technology

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1 Contact Attorneys Regarding This Matter: Tracy M. Field direct fax [email protected] Erin M. Rush direct fax [email protected] Client Alert CMS Releases Proposed Rule On Meaningful Use Of Electronic Health Record Technology The American Recovery and Reinvestment Act of 2009 (ARRA) established programs to provide incentive payments to eligible professionals () and eligible hospitals participating in Medicare and Medicaid that adopt and make meaningful use of certified electronic health record (EHR) technology. Collectively, the health IT provisions of ARRA are referred to as the Health Information Technology for Economic and Clinical Health Act (HITECH). ARRA specified three requirements for meaningful use : (1) use of certified EHR technology in a meaningful manner; (2) the certified EHR technology must be connected in a manner that provides for the electronic exchange of health information to improve the quality of care; and (3) in using certified EHR technology, the provider must submit to the Secretary of HHS information on clinical quality measures and such other measures selected by the Secretary. On January 13, 2010, the Centers for Medicare & Medicaid Services (CMS) and the Office of the National Coordinator for Health Information Technology (ONC) issued rules that propose a definition of meaningful use and set certification standards for the EHR incentive program. CMS s proposed rule defines the central concept of meaningful use of EHR technology. ONC s interim final rule sets initial standards, implementation specifics, and certification criteria for EHR technology. Both the proposed rule and the interim final rule are currently open to a sixty-day public comment period. Attorneys at Law th Street NW Suite 2100 Atlanta, GA These regulations are closely linked, said CMS acting administrator, Charlene Frizzera. CMS s proposed regulation would define and specify how to demonstrate meaningful use of EHR technology, which is a prerequisite for receiving the Medicare incentive payments. ONC s regulation sets forth the standards and specifications that will enhance the interoperability, functionality, utility, and security of health information technology. CMS s proposed rule provides for three stages in which and eligible hospitals can prove meaningful use of EHR technology. 1 At this point, detailed criteria have only been proposed for Stage 1. Stage 1 focuses on collecting data electronically, sharing this data with other healthcare providers and patients, 1 CMS has proposed that hospital-based professionals who furnish 90% or more of their services in a hospital setting are not eligible for incentive payments. Examples of hospital-based physicians include pathologists, anesthesiologists, and emergency physicians. Page 1

2 and reporting the measures to the government. Stage 2 criteria will be proposed by the end of Stage 3 criteria will be proposed in CMS has suggested that all providers must meet Stage 3 requirements by 2015 in order to receive incentive payments or avoid reimbursement penalties. For Stage 1, there are currently 25 objectives for and 23 objectives for eligible hospitals. To qualify for the incentive payment, an EP or eligible hospital must be a meaningful user during the reporting period, which CMS has proposed as a continuous ninety-day period within the first payment year and the entire payment period for the second and subsequent years. Concerns have already been voiced throughout the healthcare industry regarding the Stage 1 objectives. Some of these concerns include: The exclusion of hospital-based physicians may prompt healthcare systems and teaching programs to stop investing in ambulatory systems for these physician groups. The implementation schedule places pressure on hospitals and that delay in implementing EHR technology because, by 2015, all hospitals and would need to meet Stage 3 criteria to avoid payment penalties. Reporting requirements may prove onerous because Stage 1 objective require and hospitals to gather information spanning both electronic and paper systems, such as the percentage of orders entered through CPOE systems. The certification process will not be known until it is described in a forthcoming proposed rule from ONC. Neither of the just-released rules provides for acceptance of previous CCHIT certification nor allows for transition time between when certification criteria are announced and when providers will be expected to use products certified to those criteria. Stage One Objectives: Improve quality, safety, efficiency, and reduce health disparties CPOE is used for at least 80% of all CPOE is used for 10% of all orders orders Enabled the implementation of drug-drug, drug-allergy, drug-formulary checks Enabled the implementation of drug-drug, drug-allergy, drug-formulary checks Page 2

3 Maintain an up-to-date problem list of current and active diagnoses based on ICD-9-CM or SNOMED CT the EP have at least one entry or an indication of non recorded as Generate and transmit 75% of all permissible prescriptions electronically (erx) using EHR technology Maintain an up-to-date problem list of current and active diagnoses based on ICD-9-CM or SNOMED CT the eligible hospital have at least one entry or an indication of non recorded as Maintain an active medication list the EP have at least one entry (or an indication of none) recorded as Maintain an active medication allergy list (at least 80% of all patients seen by the EP have at least one entry (or an indication of none) recorded as structured data) At least 80%of all patients seen by the EP have demographics recorded as structured data (i.e., preferred language, insurance type, gender, race, ethnicity, date of birth) At least 80%of all patients over age 2 seen by the EP record blood pressure At least 80% of all patients over 13 seen by the EP have smoking status recorded Maintain an active medication list (at least 80% of all patients seen by the eligible hospital have at least one entry (or an indication of none) recorded as structured data) Maintain an active medication allergy list (at least 80% of all patients seen by the eligible hospital have at least one entry (or an indication of none) recorded as At least 80%of all patients seen by the eligible hospital have demographics recorded as structured data (i.e., preferred language, insurance type, gender, race, ethnicity, date of birth) At least 80%of all patients over age 2 seen by the eligible hospital, record blood pressure At least 80% of all patients over 13 seen by the eligible hospital have smoking status recorded Page 3

4 At least 50% of all clinical lab tests ordered whose results are in a positive/negative or numerical format are incorporated in certified EHR technology as structured data Generate at least one report listing patients of the EP with a specific condition Must report ambulatory quality measures to CMS or the States At least 50% of all clinical lab tests ordered whose results are in a positive/negative or numerical format are incorporated in certified EHR technology as structured data Generate at least one report listing patients of the eligible hospital with a specific condition Must report quality measures to CMS or the States Engage patients and families in their health care Must send reminders to 50% of patients age 50+ for preventive/ follow up care Implement 5 clinical decision support rules relevant to the clinical quality metrics the EP is responsible for described in CMS proposed rule section II(A)(3) Check insurance eligibility electronically from public and private payers for at least 80% of patients Submit at least 80% of all claims filed electronically to public or private payers with an electronic copy of their health information within 48 hours Implement 5 clinical decision support rules relevant to the clinical quality metrics the Eligible hospital is responsible for described in CMS proposed rule section II(A)(3) Check insurance eligibility electronically from public and private payers for at least 80% of patients Submit at least 80% of all claims filed electronically to public or private payers with an electronic copy of their health information within 48 hours who are discharged a copy of their discharge instructions and procedures upon request Page 4

5 Improve Care Coordination Ensure adequate privacy and security protections for personal health information Provide at least 10% of all patients timely access to their health information within 96 hours of information being available Provide clinical summaries for at least 80% of all office visits to electronically exchange key clinical information Perform medication reconciliation for at least 80% of relevant encounters and transitions of care Provide summary of care record for at least 80% of transitions of care and referrals to submit electronic data to immunization registries certified EHR technology s capacity to provide electronic syndromic surveillance data to public agencies Conduct or review a security risk analysis per 45 CFR (a)(1) and implement security updates as necessary to electronically exchange key clinical information Perform medication reconciliation for at least 80% of relevant encounters and transitions of care Provide summary of care record for at least 80% of transitions of care and referrals to submit electronic data to immunization registries the EHR system s capacity to provide electronic submission of reportable lab results to public agencies certified HER technology s capacity to provide electronic syndromic surveillance data to public agencies Conduct or review a security risk analysis per 45 CFR (a)(1) and implement security updates as necessary serves the business needs of growing public and private companies, helping clients turn legal challenges into business opportunities. We don t just tell you if something is possible, we show you how to make it happen. Please visit our website for more information, This alert provides a general summary of recent legal developments. It is not intended to be, and should not be relied upon as, legal advice. Page 5