Electronic Health Records

Extension of EHR Safe Harbor? The Ball is Rolling …

Ann Feldkamp Triebsch Electronic Health Records, Fraud and Abuse, Health Information Technology, HITECH Law , , , , ,

clip_image002by Ann F. Triebsch

The anti-kickback “safe harbor” allowing hospitals to donate electronic health record (“EHR”) equipment to physicians who may refer patients to their facility is set to expire on December 31, 2013, but efforts have begun to have the safe harbor extended. The safe harbor, created in 2006, allows hospitals to donate EHR and electronic prescribing technology to practices for the purpose of setting up or improving EHR systems, provided that the practice covers 15% of the cost of the EHR technology, without risk of anti-kickback enforcement. The purpose was to incentivize the meaningful use of EHR systems, and Medicare incentive payments for EHR adoption will continue through 2016.

Rep. Jim McDermott (D-Wash.) sent a letter on March 28 to Greg Demske, chief counsel of the HHS Office of Inspector General, asking OIG to extend the safe harbor provision. He emphasized Washington’s goal of reducing healthcare costs and eliminating wasteful spending, and pointed out that an extension would further that goal. He called the safe harbor provision “a common-sense policy” that “encourages collaboration among providers, yet also contains rigorous requirements that providers must meet in order to protect the Medicare and Medicaid programs from the few unscrupulous providers who would donate electronic health record software in exchange for referrals.” Earlier this year, the Federation of American Hospitals also showed support for renewing the EHR safe harbor.

To read Rep. McDermott’s letter, click here.

To read the Federation of American Hospitals letter, click here.

Stay tuned for further action on an extension.

New EHR Exemptions Proposed

Margaret Young Levi Electronic Health Records, Eligible Professional Incentives, Health Information Technology, HITECH Law, Meaningful Use, Physician EMR Stimulus , , , ,

Doctor Speaking with PatientA new bill entitled the “Electronic Health Records Improvement Act” has been introduced in the U.S. House of Representatives. Its stated purpose is to “amend certain requirements and penalties implemented under the Medicare and Medicaid programs by the HITECH Act of 2009, which would otherwise impede eligible professionals from adopting electronic health records to improve patient care.” Most notably, this bill proposes two new exemptions to the requirements to be a meaningful user of electronic health records (“EHRs”) that will be beneficial to solo physician practices and physicians nearing retirement:

  • Eligible Professionals in Small Physician Practices.  A physician who is a solo practitioner in 2015 would be exempt from the application of the downward payment adjustment for not demonstrating EHR meaningful use during the payment years 2015-2017.  Implementing EHRs require significant investments in time for vendor selection, capital, and staff resources—and solo practitioners typically do not have the necessary resources to invest in EHRs.  This exemption allows undercapitalized solo practitioners an additional three years to become a meaningful EHR user.
  • Exception for Certain Physicians Near Retirement Age.  A physician who will be eligible for Social Security by December 31, 2015 (or will be eligible during the 5-year period following that date) is also exempt from the application of the downward payment adjustment for not demonstrating EHR meaningful use during the payment years 2015-2017.  This exemption will encourage physicians nearing retirement to continue practicing medicine for several more years instead of retiring early to avoid implementing an EHR.  (Because this section of the Bill uses the terms “eligible professional” (in the text) and “physician” (in the title), there is some question as to whether this exception applies only to physicians nearing retirement or also applies to other types of eligible professionals, such as dentists, chiropractors, podiatrists, and optometrists.  Hopefully, this confusion will be clarified if this Bill progresses into law.)

Here is a link to H.R. 1331. This Bill is currently in committee, and we will watch its progress closely.

Update (1/31/2015):  Unfortunately, H.R. 1331 died in Committee.

Report 2012 HIPAA Small Breaches by Friday, 3/1

Margaret Young Levi Electronic Health Records, Federal Law Resources, Health Information Technology, Privacy & Security

by Ann F. Triebsch

Friday, March 1, is the deadline for HIPAA covered entities to report to HHS small breaches of unsecured protected health information that occurred in 2012.  A small breach includes less than 500 individuals.  Affected individuals must be notified within 60 days of the breach’s discovery, but the breach also must be reported to HHS within 60 days of the close of that calendar year, or by March 1of the following year.  To file a report, follow this link.

February 28th Deadline for EPs To File Attestation for EHR Incentives and CQMs

Margaret Young Levi EHR Certification Standards, Electronic Health Records, Eligible Professional Incentives, Health Information Technology, HITECH Law, Meaningful Use, Physician EMR Stimulus

The deadline is fast approaching for eligible professionals (“EPs”) to file attestations to receive electronic health record (“EHR”) incentives available under Medicare’s Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH Act”). 

To receive an EHR incentive payment, EPs, such as physicians, dentists, podiatrists, optometrists and chiropractors, must show they are “meaningfully using” their EHRs in ways that can positively improve patient care by meeting certain objectives and reporting certain clinical quality measures (“CQMs”).  EPs must also file an attestation that they have met the thresholds and all of the requirements of the Medicare EHR Incentive Program.  EPs who participate in the Medicare EHR Incentive Program in 2012 must submit the CQMs and file an attestation with CMS for the 2012 program year by February 28, 2013. 

If you are participating in the pilot program to submit your CQM data electronically, please be aware that your window to file is limited because of a planned system downtime.  You will be unable to file your CQM data beginning at 11:59 p.m. ET tomorrow, Friday, February 22 through Sunday, February 24 at 11:59 p.m. ET because CMS has a system outage already scheduled that will affect CQM filing.  (We understand, but have been unable to verify, that you may still file an attestation during the outage.)  The Centers for Medicare & Medicaid Services (“CMS”) warns that “[f]ailure to submit your CQMs electronically by 11:59pm ET on February 28 will result in your attestation being rejected for the 2012 program year.” 

We also recommend you not wait until the last minute—as CMS expects a high volume of users on both the Physician Quality Reporting System (“PQRS”) and EHR Incentive Program systems over the next week.  Please keep this in mind when planning for your CQM data submission and completion of your 2012 attestation. 

For additional information regarding the EHR Incentive Program, check out CMS’ EHR Incentive Programs website.  Its Educational Materials in particular are quite helpful.  In addition, CMS has recently updated its frequently asked questions (“FAQs”) related to the EHR Incentive Programs.    

CMS Issues Interim Final Rule on EHR Certification and Incentives

Margaret Young Levi EHR Certification Standards, Electronic Health Records, Eligible Professional Incentives, Health Information Technology, HITECH Law

On December 7, 2012, the Office of the National Coordinator for Health Information Technology (ONC) and Centers for Medicare & Medicaid Services (CMS) published an interim final rule with comment period to make revisions to the 2014 Edition Electronic Health Record (EHR) and revisions to the EHR Incentive Program.  Specifically, this rule will:

  • Replace the Data Element Catalog (DEC) standard and the Quality Reporting Document Architecture (QRDA) Category III standard adopted in the final rule published on September 4, 2012 with updated versions of those standards.
  • Revise the Medicare and Medicaid EHR Incentive Programs by adding an alternative measure for the Stage 2 meaningful use (MU) objective for hospitals to provide structured electronic laboratory results to ambulatory providers, correcting the regulation text for the measures associated with the objective for hospitals to provide patients the ability to view online, download, and transmit information about a hospital admission, and making the case number threshold exemption for clinical quality measure (CQM) reporting applicable for eligible hospitals and critical access hospitals (CAHs) beginning with FY 2013.
  • Provide notice of CMS’s intention to issue technical corrections to the electronic specifications for CQMs released on October 25, 2012.

This interim final rule will be effective January 5, 2012.