HITECH Law

ONC revokes two EHR product certifications — review your vendor contract warranties!

Kathie McDonald-McClure EHR Certification Standards, Electronic Health Records, Eligible Professional Incentives, Health Information Technology, HITECH Law, Hospital EHR Incentives, Meaningful Use , , , , , , , ,

man planningOn April 25, 2013, the Officer of National Coordinator for Health Information Technology (ONC) announced that it had revoked certification for two electronic health record (EHR) products that the ONC had previously certified for use as part of the incentive program implemented pursuant to the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH Act).   The products for which ONC revoked certification are EHRMagic-Ambulatory and EHRMagic-Inpatient.  The ONC’s press release with additional information is available here.

Whether the providers who purchased these products in reliance on the previous ONC certification will be able to recoup their investment in these products may depend on the terms of any vendor agreement signed between the parties.  For providers who are purchasing ONC-certified products, this development highlights the importance of examining the provider’s EHR vendor agreement to ensure that it contains adequate warranty and indemnification provisions that will protect the provider in case the vendor’s product is de-certified by the ONC.  Importantly, without “certified EHR technology”, the provider will not qualify for the HITECH Act’s meaningful use incentive payments.

Kentucky Health Information Exchange Underwriting CeRT Early Adopter Licenses for One Year

Kathie McDonald-McClure Electronic Health Records, Health Information Technology, HITECH Law, Meaningful Use , , , , ,

incentive paymentsKentucky Health Information Exchange (KHIE) sends out alert on Thursday, April 18, 2013, indicating that it will accept applications from 13 providers who are seeking financial assistance to qualify for the HITECH Act’s Meaningful Use incentive payments.

Continue reading →

The Ball is Now in Play to Extend the EHR Safe Harbor!

Kathie McDonald-McClure Electronic Health Records, Fraud and Abuse, Health Information Technology, HITECH Law , , , , , , ,

By Ann F. Triebsch and Kathie McDonald-McClure

clip_image002Barely two weeks after Rep. Jim McDermott (D-Wash) sent a letter to the HHS Office of the Inspector General (OIG) requesting that the Anti-Kickback Statute’s “safe harbor” allowing hospitals to donate electronic health record (EHR) items and services to physicians be extended, the OIG has proposed a rule to do exactly that.  On April 10, 2013, the OIG proposed a rule to extend the Anti-Kickback Statute safe harbor from December 31, 2013, to December 31, 2016.  On the same date, the Centers for Medicare & Medicaid Services (CMS) proposed a complementary rule to extend the Stark Law’s similar EHR exception to December 31, 2016.

Continue reading →

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.