HHS Embraces Flexibility In Final MU RegsHHS Embraces Flexibility In Final MU Regs

According to the HITECH Act -- part of the massive American Recovery and Reinvestment Act of 2009 -- healthcare providers and hospitals are eligible for stimulus monies if they become meaningful users of certified electronic health record (EHR) technology. The program - which offers eligible professionals up to $44,000 under Medicare and $63,750 under Medicaid, and hospitals millions -- has been developed by HHS/CMS and ONC over the last 14 months. Based on how many providers qualify, the federal tab could range from $9.7 to $27.4 billion, according to CMS.

Tuesday's final regulations -- announced at a press conference hosted by HHS Secretary Kathleen Sebelius -- make clear those agencies adjusted the proposed regulations according to issues raised in more than 2,000 comment letters received from the public, many of which eschewed the original prescriptive approach.

Specifically, while the proposed rule called on eligible professionals to meet 25 requirements (23 for hospitals) in their use of EHRs, the final rule divides the requirements into a "core" group of requirements that must be met, plus an additional "menu" of procedures from which providers may choose.

"We tried to listen to comments because we want well-intended providers to become Meaningful Users. So we want the objectives to be ambitious, but achievable," said David Blumenthal, M.D., National Coordinator for Health Information Technology, during the press conference. "We heard that the proposed rules were too inflexible, that we had an all-or-nothing approach. So what we did was add some choice."

The final rule has 15 core measures for eligible providers and 14 for hospitals, with an additional 10 measures available in a menu from which providers must select half. Those five measures would become part of that provider's Stage One requirements, while the rest would be deferred to Stage Two.

"We added flexibility to allow different providers in different situations to take different pathways to Meaningful Use. We also reduced some achievement levels we had in the NPRM," continued Blumenthal. An example of that reduction, he explained, is that the NPRM called for eligible providers to order 75 percent of their prescriptions electronically, while the final regulation brings that down to 40.

"We looked at the comments to figure out what was fair. We also reduced the clinical-decision support requirement from five rules to one. There are a whole host of similar changes," Blumenthal said.

According to Tony Trenkle, director of the CMS Office of e-Health Standards and Services, his agency also deferred some administrative transactions that were in the NPRM's version of Stage One to Stage Two. "We have also reduced the total number of quality measures," he said.

Other noteworthy elements of the final regulation include the fact that registration by both EPs and eligible hospitals with CMS for the EHR incentive program will begin in January 2011 at one virtual location, and that payments will be made to eligible hospitals identified by their individual CMS Certification Number.

The latter had been decried by health systems with multiple hospitals which are all identified under the same CMS number. In retaining the one-payment-per-number policy, CMS stated: "The final rule retains the proposed definition of an eligible hospital because that is most consistent with policy precedents in how Medicare has historically applied the statutory definition of a 'subsection (d)' hospital under other hospital payment regulations."

Blumenthal added that he hoped the government would one day be able to step back in the promotion of EHRs, allowing the profession to take over.

"I believe it is only a matter of time before doctors and hospitals are leaders of this effort. The reason is that using information is a core clinical competency for professionals in healthcare. We are only as good at treating patients as the information we have. I know that doctors will soon be unwilling to record information in any other format than the most modern and efficient one because that will be consistent with what they view as their professional responsibility," he said. "At that point, we will pass the leadership role from ourselves to the profession and to our major healthcare institutions. Until then, we work with all of you to make that happen as soon as possible."