Health Care Law Reform : Health Care Lawyer & Attorney : McDermott Will & Emery Law Firm : Managed Care, Product Regulations

The Facts

The Office of the National Coordinator for Health Information Technology’s HIT Policy Committee has taken another important step towards defining “meaningful use” under the American Recovery and Reinvestment Act of 2009 (ARRA). Hospitals and eligible providers must meet the requirements for “meaningful use” of certified electronic health records (EHRs) in order to qualify for Medicare incentive payments under ARRA. Recently, the HIT Policy Committee approved revised recommendations for an initial definition of “meaningful use.” These recommendations are outlined in a lengthy matrix, which sets forth measures for meeting specified objectives for each of the years 2011, 2013 and 2015:

• Goal for 2011 objectives – Capacity to electronically capture in coded format and report health information, and use that information to track key clinical conditions
• Goal for 2013 objectives – Ability to guide and support care processes and care coordination
• Goal for 2015 objectives – Capability to achieve and improve performance and support care processes and key health system outcomes

The HIT Policy Committee also recommended that the incentives be paid according to an “adoption year” timeframe rather than a calendar year timeframe. Accordingly, the objectives and measures for the year 2011 would apply to an organization’s first adoption year, if an organization is not ready for incentive payments until after 2011. The U.S. Department of Health and Human Services (HHS) will use the recommendations to develop regulations to implement the incentive payments under ARRA. 

What’s at Stake

Hospitals and eligible providers that meet the requirements of “meaningful use” of certified EHRs will be eligible for Medicare incentive payments beginning in 2011. Medicare payments may be reduced to hospitals and providers that do not meet the requirements for “meaningful use” of certified EHRs by 2015.

Steps to Consider

Evaluate how the 2011 Objectives and Measures in the Meaningful Use Matrix may require changes in the operations of your organization, anticipating that some form of the objectives and measures may ultimately be included in the regulations promulgated by HHS. Monitor regulatory actions by HHS regarding the definition of “meaningful use” and Medicare incentive payments under ARRA.

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The Facts
The Health Information Technology for Economic and Clinical Health (HITECH) Act, part of the American Recovery and Reinvestment Act of 2009, includes Medicare incentives for adoption and meaningful use of certified electronic health record (EHR) technology.   To be eligible for incentive payments, hospitals and physicians must use EHRs in a meaningful manner, exchange electronic health information to improve the quality of care, and report on clinical quality and other measures.  Additional guidance regarding these parameters is expected from the U.S. Department of Health and Human Services through the regulatory process.  The Health Information and Management Systems Society has published recommendations regarding the definition of “meaningful use”: 

• Recognize Certification Commission for Healthcare Information Technology (CCHIT) as the certifying body of EHRs.
• Adopt metrics that can be reasonably captured and reported beginning in 2011.  These metrics should then become increasingly stringent every two or more years to achieve incremental maturation of “meaningful use.”
• Coordinate with Health Information Technology Standards Panel and Integrating the Healthcare Enterprise to publish implementation guides and standards for output of EHR data to bridge existing gaps in interoperability of health information.
• Collaborate with CCHIT to fairly evaluate hospitals and physicians that use “best of breed” systems from multiple vendors or open source technologies.

What’s at Stake
Hospitals and physicians that meet the requirements of “meaningful use” of certified EHRs will be eligible for Medicare incentive payments beginning in 2011.   Medicare payments may be reduced to hospitals and physicians that do not meet the requirements for “meaningful use” of certified EHRs by 2015. 

Steps to Consider

• If your organization is considering acquiring an EHR system, seek counsel on the legal requirements of “meaningful use” (including interoperability) and anticipate the timeframe for your organization to meet these requirements before the eligibility dates. 
• Obtain a contractual commitment from the vendor that the system will permit usage in accordance with the federal definition of “meaningful use.”
• Conduct due diligence on and obtain contractual commitments from your vendor to make sure it is certified and can meet the requirements of certification panels.
• When selecting an EHR system, obtain stakeholder endorsements to support system success.

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