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Foster Swift Health Care Law Report
September 2011
It seems that everything these days is hi-tech. After all, most places advertise having "free wi-fi" and cell phones no longer just make phone calls but have "data plans." However, one industry that appears to be lagging behind with regard to technology is the health care industry. Specifically, while many physician offices use computers for making appointments and financial record keeping, many physician offices still use paper records to document patient medical care and treatment instead of electronic health records (“EHR”).
The federal government, through the Health Information Technology for Economic and Clinical Health Act (“HITECH”) is pushing physicians and other health care professionals towards EHR by offering financial incentives and eventually imposing financial penalties. Ultimately, the federal government believes that EHR will lead to extra cost savings, more efficient care, and increased quality in general.
In order to achieve these objectives, the government is offering eligible Medicaid professionals, such as physicians, dentists, and physician assistants, a maximum of $63,750 for "meaningful use" of EHR. Eligible professionals under Medicare can earn up to $44,000 for meaningful EHR use. Starting in 2015, Medicare professionals who are not meaningfully using EHR will be subject to lower reimbursement rates. Thus, eventually those physicians not using EHR will be monetarily penalized through lower rates.
Therefore, it is important for physicians to determine whether it is financially advantageous to use EHR and receive the EHR incentive payments. In order to get the most out of the incentive payments (that start in 2011), physicians and other health professionals need to register before the year is over. This article briefly outlines the steps for participating in the HITECH incentives for EHR.
Step One : Determine Eligibility and Choose a Program
The first step is determining whether you are eligible for the EHR incentives. In order to do that, you should review the list of eligible professionals published by the Centers for Medicare and Medicaid Services ("CMS"). This list defines the eligible professionals and applicable requirements for both the Medicaid and Medicare programs.
Eligible professionals are eligible for incentive payments under only one of the programs (not both Medicare and Medicaid) and must choose which program to pursue. For more information visit the CMS EHR Incentive Program page.
Step Two: Register
Once either the Medicare or Medicaid program is chosen, it is imperative to register with CMS. Medicare is already taking registrations. Michigan's Medicaid program is also accepting registrations, even though other state Medicaid programs are not yet currently up and running.
Additionally, it is important to register as soon as possible to take advantage of the full extent of incentives offered. Health professionals are allowed to register prior to having a certified EHR system installed, so there is no excuse for procrastination. CMS has a Registration Guide for the Medicare Program and a Registration Guide for the Medicaid Program that provides an in-depth look at the registration process for both programs.
Step 3: Install and Use Certified EHR Technology
The next step in the EHR process is actually using certified EHR technology. Before this step can be taken, however, some groundwork must be laid. Health care professionals must determine their needs for electronic records, review the options and confirm the desired technology is certified. For a complete list of EHR certified by the Office of the National Coordinator for Health Information Technology see the following list. Professionals should also negotiate and enter into a contract for the technology and its maintenance before installing the system. It is important prior to entering into any technology agreement to have the contract reviewed by an attorney.
Once the certified EHR contract has been entered and EHR has been installed, the health professional must use the EHR and, in particular, show "meaningful use." Meaningful use, in short, means that the EHR is being used in ways that can be measured in terms of quality and quantity (by meeting certain benchmarks described below). A health care professional must demonstrate meaningful use for a consecutive 90-day period during the first year of participation and for the full year for each subsequent year.1 This means that those hoping to capitalize on the EHR incentives will need to begin using EHR by the beginning of October of this year.
Step 4: Continue Meaningful Use of EHR
The government has set out specific requirements that a health care professional must meet to demonstrate meaningful use of EHR. These requirements will be implemented in three stages and will become increasingly difficult to fulfill as the stages progress. In order to meet the 2011 and 2012 objectives (Stage 1) and qualify for incentive payments, eligible health care professionals must be meet 20 of the objectives. There are 15 required, core objectives and 10 “menu” objectives, of which 5 must be chosen. A meaningful use analysis to ensure compliance, though time consuming, must be done.
Stages 2 and 3 are expected to be implemented in 2013 and 2015, respectively. The objectives will expand upon the Stage 1 requirements and be developed as part of future rulemaking.
Step 5: Attest for Use of Incentive Payments
Once eligible professionals begin meaningfully using EHR, they must attest to such use. For the Medicare program, this is done using CMS' secured website.
Conclusion
Like most things in society, it will likely become the norm for medical records to be in an electronic format. Physicians and other health professionals should, at the very least, consider participating in the EHR incentive program. If you have any questions regarding these steps or would like our assistance in determining whether you may benefit from EHR, please contact us.
1 The Medicaid program has a slightly different program. To receive the Medicaid EHR incentive payments, you must do one of the following: (1) adopt certified EHR technology; (2) implement certified EHR technology you have already purchased; (3) upgrade your current EHR technology to the newly certified version; or (4) demonstrate "meaningful use" of certified EHR technology for a 90-day period.