Incentive Payments to Physicians Purchasing Qualified EHR Software

December 3, 2010

Eligible professionals (EPs) are entitled to receive “incentive payments” under the Medicare and Medicaid programs for the adoption and “meaningful use” of “certified” electronic health records (EHRs). Many physicians have expressed confusion over the software certification requirement specified in the Health Information Technology for Economic and Clinical Health (“HITECH”) Act as outlined by the Department of Health and Human Services (“HHS”), Centers for Medicare and Medicaid Services’ (“CMS”) Final Rule that was published on July 28, 2010 in the Federal Register.

EPs receive incentive payments for the “adoption and meaningful use of certified EHR technology.” To receive these payments, an EP must (1) adopt and use EHR technology in a manner that qualifies as “meaningful use” and (2) the EHR technology must be “certified.” These requirements are separate and must both be met for the EP to be eligible to receive the incentive payments.

This Client Alert focuses on the second requirement of “certified” EHR technology.

Background on Certification

The HITECH Act requires that software used by EPs be certified. The HHS Office of the National Coordinator (“ONC”) clarified that certified EHR technology provides “assurance to purchasers and other users that an EHR system, or other relevant technology, offers the necessary technological capability, functionality, and security to help them meet the meaningful use criteria established for a given phase.”

Even though the HHS ONC for Health Information Technology (“ONCHIT”) is the ultimate certifying body, it has delegated certification authority to certain ONC “Authorized Testing and Certification Bodies” (ATCBs).

On June 18, 2010, ONCHIT issued final rules on a first-round process to name “temporary” testing and certification programs. On July 1, 2010, ONCHIT began accepting applications from organizations seeking to qualify as testing and certification organizations. ATCBs may test both “Complete EHRs” as well as “EHR Modules.” They must test and certify that the EHR technology complies with the standards, implementation specifications, and certification criteria adopted by the HHS Secretary, and meets the definition of “certified EHR technology.”

Are EPs Still Eligible to Receive Meaningful Use Incentive Funding?

Yes. EPs may receive up to $44,000 under the Medicare program, or $63,750 under the Medicaid program. These incentives will be in the form of annual payments that are expected to begin in May, 2011. The reporting year for EPs begins on January 1, 2011. For the first payment year only, EPs must demonstrate meaningful use of certified EHR technology for a continuous 90 day period. For all years thereafter, the meaningful use must be continuous.

Under the Medicare Incentive Program

• EPs who demonstrate meaningful use of certified EHR technology will receive incentive payments.
• EPs can delay the start of participation until 2012 and still receive the full $44,000 (vs. $39,000 if they start in 2013 and $24,000 if they start in 2014).
• There is an additional incentive for an EP who provides services in a “Health Professional Shortage Area.”
• For 2015 and later, all EPs who do not successfully demonstrate meaningful use will have a payment adjustment in their Medicare reimbursement.
• The last day for an EP to begin the 90-day reporting period for calendar year 2011 is October 1, 2011.

Under the Medicaid Incentive Program

• 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 five remaining participation years, will receive incentive payments.
• The Medicaid Incentive Program is voluntarily offered by individual states and territories and the timeline is determined by the state. It may start as early as 2011.
• EPs can delay the start of participation until 2016 and still receive the full $63,750 payment. Registration for the program begins on January 3, 2011.
• There are no payment adjustments under the Medicaid Program.

The last day for EPs to register and attest to receive an Incentive Payment for calendar year 2011 is February 29, 2012.

EPs should not delay implementation because, as discussed further below, implementation will be time consuming and unexpected difficulties are sure to arise.

Who is an ONC-ATCB?

As of this writing, ONCHIT has granted ATCB status to three organizations:

Certification Commission for Health Information Technology
(CCHIT) - Chicago, IL
Date of authorization: September 3, 2010
Scope of authorization: Complete EHR and EHR Modules
http://www.cchit.org

Drummond Group, Inc. (DGI) - Austin, TX
Date of authorization: September 3, 2010
Scope of authorization: Complete EHR and EHR Modules
http://www.drummondgroup.com

InfoGard Laboratories, Inc. – San Luis Obispo, CA
Date of authorization: September 24, 2010
Scope of authorization: Complete EHR and EHR Modules
http://www.infogard.com

EHR technology certified by one of the above organizations signifies that this certified technology has the capabilities necessary to support an EPs efforts to meet the goals and objectives of meaningful use.

How do EPs Find Certified Software?

ATCBs make a report to the ONCHIT every time software is certified. ONCHIT then publishes this information online on the Certified HIT Product List (CHPL) available at http://onc-chpl.force.com/ehrcert.

While the CHPL provides the authoritative listing of Complete EHRs and EHR Modules that have been tested and certified, EPs should also check the individual websites for the ATCBs because “the CHPL is a ‘snapshot’ of the current list of certified products.”

EPs should note that only the product versions that are included on the CHPL are certified. As such, when selecting an EHR technology, it is very important to note the version. For example, CCHIT certified the Allscripts Professional EHR Version 9.2 by Allscripts (the “Allscripts Software”). Versions prior to 9.2 will not meet the certification requirement.

What is the Difference between Complete EHRs and EHR Modules?

As clarified by the ONC,

Complete EHR refers to EHR technology that has been developed to meet, at a minimum, all applicable certification criteria adopted by the HHS Secretary. For Complete EHRs designed for an ambulatory setting this means all of the certification criteria adopted at 45 CFR 170.302 and 45 CFR 170.304. For Complete EHRs designed for an inpatient setting this means all of the certification criteria adopted at 45 CFR 170.302 and 45 CFR 170.306. These certification criteria represent the minimum capabilities EHR technology needs to include and have properly implemented in order to achieve certification. They do not preclude Complete EHR developers from including additional capabilities that are not required for the purposes of certification.

EHR Module refers to any service, component, or combination thereof that meets at least one certification criterion adopted by the HHS Secretary. EHR Modules, by definition, must provide a capability that can be tested and certified in accordance with at least one certification criterion adopted by the HHS Secretary. Therefore, if an EHR Module does not provide a capability that can be tested and certified at the present time, it is not HIT that would meet the definition of EHR Module . . . An EHR Module could provide a single capability required by one certification criterion or it could provide all capabilities but one, required by the certification criteria for a Complete EHR. In other words, we would call HIT tested and certified to one certification criterion an “EHR Module” and HIT tested and certified to nine certification criteria an “EHR Module,” where ten certification criteria are required for a Complete EHR.

Must EPs do Anything in Addition to Purchasing Certified EHR Technology to Receive Incentive Payments?

Yes. Under the HITECH Act, EPs must adopt and use EHR technology in a manner that qualifies as “meaningful use”. That is, it is not enough to just purchase and install the software. EPs must implement the technology as well.

What are Some Tips to Successfully Implement EHR Software?

Purchasing the software is generally the easiest part. Software implementation is really where the trouble starts because EPs must integrate the software into their workflow and must train both themselves and their staff. To successfully implement EHR software, EPs must:

1. Understand the meaningful use requirements;
2. Understand the workflow process in the EPs office;
3. Work with representatives from each group of users (e.g., doctors, nurses, accounting, scheduling, etc.) to ensure that each group’s needs are addressed and considered prior to purchasing;
4. Do not be hasty in software selection -- EPs still have plenty of time to evaluate software options;
5. Do not wait until the last minute because implementation takes time; and
6. Make sure EPs understand the purchase terms for the EHR technology and that these terms are in line with the EPs expectations as well as the meaningful use requirements.

While transitioning to new technology can be difficult, it is not impossible and if done properly, will pay dividends for many years to come in improved efficiency and patient satisfaction.

FOR MORE INFORMATION, PLEASE CONTACT:

Kevin M. Bernys is a member in Dickinson Wright’s 
Troy office and can be reached at
248.433.7234 or kbernys@dickinsonwright.com.

Tatiana Melnik is an associate in Dickinson Wright’s
Ann Arbor office and can be reached at 734.623.1713
or tmelnik@dickinsonwright.com.

 

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