ELECTRONIC HEALTH RECORDS: Legal and Practical Considerations for Adoption and Meaningful Use

Transcription

1 ELECTRONIC HEALTH RECORDS: Legal and Practical Considerations for Adoption and Meaningful Use May 12, 2011 Moderated by: Kimberly J. Kannensohn, Partner, McGuireWoods LLP Presenters: Holly Carnell, Attorney, McGuireWoods LLP Marcy Carrington, Strategic Project Director, Associates In Nephrology, S.C. Suprit Patel, Manager, Advisory Services, Ernst & Young

2 Introduction Title XIII of the ARRA of 2009 the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH Act) HITECH provides incentive payments for Medicare eligible professionals ( EPs ) and Medicaid EPs for the meaningful use of certified EHR technology HITECH also provides incentive payments for eligible hospitals McGuireWoods LLP 2

3 Key Program Elements Eligible Providers Medicare M.D. or D.O., dentist, doctor of podiatric medicine and chiropractor Medicaid (i) Physician, dentist, CNM, NP, and PAs practicing in an FQHC or RHC that is led by a PA, AND (ii) at least 30% of patient volume attributable to Medicaid (or 20% for pediatricians) Certified EHR EHR technology must be certified by an organization accredited as an Authorized Testing and Certification Body by ONC McGuireWoods LLP 3

4 Key Program Elements Registration Opened on January 3, 2011 for Medicare and certain Medicaid programs As of May 10, 2011, the following states are ready to participate: Alabama, Alaska, California, Indiana, Iowa, Kentucky, Louisiana, Ohio, Oklahoma, Michigan, Mississippi, Missouri, North Carolina, South Carolina, Tennessee Remaining states that elect to participate will launch during summer McGuireWoods LLP 4

5 Key Program Elements Meaningful Use The criteria for meaningful use will be staged in three steps over the course of the next five years. Stage 1 (2011 and 2012)- Data Capture and Reporting Stage 2 (expected to be implemented in 2013)- Advanced Clinical Processes Stage 3 (expected to be implemented in 2015)- Improved Outcomes Meaningful use includes both a core set and a menu set of objectives that are specific to EPs or hospitals and CAHs. EPs There are 15 required core objectives. The remaining 5 objectives may be chosen from the list of 10 menu set objectives. 6 total Clinical Quality Measures (3 core or alternate core, and 3 out of 38 from an additional set) McGuireWoods LLP 5

6 Key Program Elements The Medicare EHR Incentive Program will provide incentive payments to eligible professionals (EPs) that demonstrate meaningful use of certified EHR technology. EPs may receive up to $44,000 over 5 years under the Medicare EHR Incentive Program. There's an additional incentive for EPs who provide services in a Health Professional Shortage Area (HPSA). To get the maximum incentive payment, Medicare EPs must begin participation by For 2015 and later, Medicare EPs that do not successfully demonstrate meaningful use will incur a payment adjustment to the amounts paid by Medicare. The Medicaid EHR Incentive Program will provide incentive payments to EPs who adopt, implement, upgrade, or demonstrate meaningful use of certified EHR technology in their first year of participation and demonstrate meaningful use for up to 5 remaining participation years. The Medicaid EHR Incentive Program is voluntarily offered by individual states and territories EPs can receive up to $63,750 over the 6 years that they choose to participate in the program To get the maximum incentive payment, Medicaid EPs must begin participation by 2015 There are no payment adjustments under the Medicaid EHR Incentive Program. Source: McGuireWoods LLP 6

7 Medicare Incentives- EPs First CY for which the EP Receives an Incentive Payment CY and subsequent years 2011 $18, $12,000 $18, $8,000 $12,000 $15, $4,000 $8,000 $12,000 $12, $2,000 $4,000 $8,000 $8,000 $ $2,000 $4,000 $4,000 $0 TOTAL $44,000 $44,000 $39,000 $24,000 $0 McGuireWoods LLP 7

8 Medicaid Incentive Payments for EPs First CY for which the EP Receives an Incentive Payment CY $21, $21, $21, $21, $21, $21, TOTAL $63,750 $63,750 $63,750 $63,750 $63,750 $63,750 Source: McGuireWoods LLP 8

9 Assignment of Incentives EHR can be funded by an employer, group practice and under certain circumstances, hospitals and other third parties Assignment must be voluntary Should enter into written agreement prior to assignment of incentive payments Source: McGuireWoods LLP 9

10 Donations to Support EHR Implementation If a referral relationship exists, i.e., local hospital or health system, an arrangement to donate EHR technology should be structured to comply with the Anti-Kickback Statute Safe Harbor and Stark Law exception for EHR donation Under the Safe Harbor and exception, software, information technology, and training services necessary and used predominantly to create, maintain, transmit, or receive EHRs may be donated provided certain requirements are met Hardware is excluded Physicians must pay at least 15% of donor costs Safe Harbor and exception include detailed requirements arrangements must be structured carefully to avoid running afoul of federal law McGuireWoods LLP 10

11 Payment Adjustments Unless an exception applies, physicians who are not meaningful EHR users will see a 1% reduction in Medicare payments starting in Reduction increases to 2% in 2016 and 3% in subsequent years. No Medicaid penalties. HITECH provides significant hardship exception, which, if applicable, could exempt certain physicians from payment adjustments. McGuireWoods LLP 11

12 Helpful Links EHR Incentive Payment Program Website: Registration and Attestation System: Certified Health IT Product List: Medicaid State Information Page: MedicaidStateInfo.asp McGuireWoods LLP 12

13 Questions or Comments? 900 Lawyers 17 Offices McGuireWoods LLP McGuireWoods LLP 13