HHS / CMS Issues Final “Meaningful Use” Objectives for Electronic Health Records (EHRs). Providers Should Exercise Extreme Caution Before Converting to an EHR System.

(July 14, 2010): Yesterday, the Department of Health and Human Services (HHS) issued its final regulations concerning what it means for eligible Medicare and Medicaid providers to be “meaningful users” of certified electronic health record (EHRs) technology in 2011 and 2012.  We are cautiously optimistic that HHS’ approach will allow small providers the flexibility they need to participate in the program if they choose but, as detailed below, are not convinced that CMS contractors are ready for the technology.

The rules support the Health Information Technology for Economic and Clinical Health Aid Act (HITECH), which authorized incentive payments through Medicare and Medicaid to clinicians and hospitals when they use EHRs privately and securely to achieve specified improvements in care delivery.  According to HHS, the incentives could be as much as $44,000 (through Medicare) and $63,750 (through Medicaid) per clinician. Subsequent rules will govern later phases of the ten year program. 

The meaningful use objectives for 2011-12 are categorized in two tiers – core and menu objectives.  The first set of “core” objectives comprises basic items essential to creating any medical record, such as:

• Recording patient demographics;
• Maintaining active medication list; and
• Generating and transmitting permissible prescriptions electronically.

The second “menu” set is comprised of 10 additional important activities from which providers will choose any 5 to implement in the first two years.  They include:

• Implementing drug formularies;
• Incorporating clinical laboratory test results into EHRs as structured data; and
• Sending reminders to patients (per patient preference) for preventative and follow-up care.

For most of the core and menu items, the regulations also specify rates at which providers must use the functions to be considered meaningful users and how to report clinical quality measures.

HHS is establishing a nationwide network of Regional Extension Centers to assist providers in adopting and using certified EHR technology.  The full 864 page rule is available at http://www.ofr.gov/OFRUpload/OFRData/2010-17207_PI.pdf

While the concept of EHR and electronic medical records (EMR) may sound great, a number of our clients have already experienced the dark side of EHR / EMR.  Unfortunately, the Centers for Medicare and Medicaid Services (CMS) have completely disregarded (or remained completely ignorant of) the fact that a number of early adopters of this technology have found that Medicare Administrative Contractors (MACs) and Program SafeGuard Contractors (PSCs) (now being replaced by Zone Program Integrity Contractors (ZPICs)) appear to be inexperienced in their review of medical records that have been generated with the assistance of EMR / EHR software programs. 

In some cases, the Medicare contractors have mistakenly alleged that the records documenting the care provided are overly similar – erroneously concluding that the records were “copied” or “cloned.”  Every software program is different.  Nevertheless, many of the programs utilize “drop-down” menus that offer providers a number of different options for documenting their observations, the patient’s symptoms, or clinical findings.  While such an approach may facilitate the completion of an evaluation, progress notes, or other clinical service, it also inadvertently leads to “similar” wording or phrases among classes of documents generated.  When a significantly number of these clinical documents are reviewed by a Medicare contractor, in some cases the contractor has incorrectly concluded that instead of documenting individualized observations, these EMR / EHR-generated medical records are mere “copies” or “clones” of other medical records.  In reaching such a conclusion, PSCs / ZPICs have denied claims and then extrapolated the alleged damages to the universe of claims at issue.

Thus, providers should exercise extreme care before transitioning over to an EMR / EHR system.  Every effort should be made to ensure that your observations are individualized to the greatest extent possible.  Prior to choosing a software program, a provider should test the program with a significant number of claims to ensure that the end product generated by the program does not leave a third party reviewer with an incorrect picture of the care provided.

Should you have any questions regarding these issues, don’t hesitate to contact us.  For a complementary consultation, you may call Robert W. Liles or one of our other attorneys at 1 (800) 475-1906.