What Is the Meaning of Meaningful Use? How to Decode the Opportunities and Risks in Health Information Technology
| Jurisdiction | United States,Federal |
| Author | Rick Rifenbark and Leeann Habte |
| Citation | Vol. 2015 No. 2 |
| Publication year | 2015 |
Rick Rifenbark and Leeann Habte1
Rick Rifenbark is a partner and health care lawyer with Foley & Lardner LLP. He counsels clients regarding health care compliance and technology issues, including the creation of electronic health records donation programs, qualification for the Medicare and Medicaid EHR incentive programs, and responding to meaningful use audits.
M. Leeann Habte is senior counsel and a health care business lawyer with Foley & Lardner LLP. A Certified Information Privacy Professional and former director at UCLA and the Minnesota state health department, she advises clients on the legal and business issues associated with complex federal and state health privacy issues and compliance issues, health information exchange issues, Medicare and Medicaid reimbursement issues, and electronic health record incentive payments.
To achieve greater efficiencies in health care, enhanced care coordination, better quality, and a reduction of medical errors, many health care entities and professionals are implementing electronic health record ("EHR") systems and other forms of health information technology. The enterprise integration of EHRs and the exchange and use of such health information are incen-tivized through the Medicare and Medicaid EHR Incentive Programs ("EHR Incentive Programs"), which were enacted as part of the American Recovery and Reinvestment Act of 2009, Health Information Technology for Clinical and Economic Health Act ("HITECH Act").
This article provides an overview of the EHR Incentive Programs, explores the legal framework for health care entities to subsidize EHR technology for health care professionals, and offers practical guidance regarding the legal issues in this area.
The EHR Incentive Programs are estimated to pay more than $30 billion in EHR incentive payments to eligible professionals ("EPs"), eligible hospitals, critical access hospitals, and Medicare Advantage organizations that make "meaningful use of certified EHR technology" between 2011 and 2021. EPs who qualify for Medicare incentives receive up to $44,000 per EP over a five-year period,2 while EPs who meet Medicaid patient-volume requirements and qualify for Medicaid incentives receive up to $63,750 per EP over six years.3 (EPs who qualify for both EHR Incentive Programs must choose one.) The amount available to hospitals varies based on several factors, including the size of the hospital and Medicare or Medicaid patient volumes, but begins with a $2 million base payment.4 Since the inception of these programs, over $19.5 billion in Medicare incentive payments5 and $9 billion in Medicaid incentive payments6 have been made to hospitals and EPs. Approximately 92% of hospitals and 75% of EPs now participate in these programs.7
Although the Medicare EHR Incentive Program has a "carrot" in the form of incentive payments, it also has a "stick" in the form of downward Medicare payment adjustments. Those EPs who were not meaningful EHR users by calendar year ("CY") 2015 received a downward payment adjustment to their Medicare physician fee schedule payments. Hospitals that were not meaningful users by federal fiscal year ("FY") 2015 received a downward adjustment to their annual increase in inpatient prospective payment system payment rate. The amount of these payment adjustments will increase each year until they reach a statutory limit. As discussed in more detail below, beginning in CY 2019, the payment penalty for EPs is incorporated into the Merit-Based Incentive Payment System. In limited situations, such as demonstrated lack of internet access or unforeseen circumstances (e.g., natural disasters), EPs and hospitals can potentially qualify for a "hardship exception" to these payment adjustments.
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A central component of the EHR Incentive Programs is the requirement that eligible hospitals and EPs make "meaningful use" of certified EHR technology. The EHR Incentive Programs utilize a phased approach to implementing the meaningful use criteria, whereby meaningful use criteria of increasing complexity are implemented in three stages.
Stage 1The Stage 1 meaningful use criteria, released on July 28, 2010, require the achievement of 13 "core" objectives and five of nine "menu" objectives for EPs. Eligible hospitals are required to satisfy 11 core objectives and five of 10 menu objectives. According to the Centers for Medicare and Medicaid Services ("CMS"), the goal of the Stage 1 criteria is to set a baseline for electronic data capture and information sharing.
Stage 2The Stage 2 meaningful use criteria, released on September 4, 2012, build upon the goals of Stage 1 by focusing on "continuous quality improvement at the point of care and the exchange of information in the most structured format possible."8 In Stage 2, EPs must meet 17 core objectives and three of six menu objectives, while hospitals must meet 16 core objectives and three of six menu objectives. Almost all of the Stage 1 core and menu objectives are incorporated into Stage 2.
Stage 3CMS released the proposed Stage 3 regulations for comment on March 20, 2015.9 These proposed regulations consolidate the meaningful use criteria into eight objectives, with a total of one to six measures per objective. CMS proposes that all hospitals and EPs will be required to meet a single standard for the Stage 3 meaningful use requirements in 2018, and participants will no longer be permitted to progress through the stages of meaningful use.
Several of the Stage 3 objectives were present in Stages 1 and 2 (e.g., e-prescribing), but now have higher thresholds for completion. In addition, the proposed Stage 3 regulations continue to focus on patient engagement and expand the requirement to collection of patient-generated data from Fitbits or mobile applications. CMS also seeks to further align the...
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