Final Rules for EHR Incentives and Certification Criteria at OMB for Review

The Office of Management and Budget (OMB) received in early July for Executive Order (EO) 12866 Regulatory Planning and Review two Final Rules relating to electronic health record (EHR) incentives and certification criteria required under the Health Information Technology for Economic and Clinical Health Act (HITECH Act) that was enacted on February 17, 2009 as part of the American Recovery and Reinvestment Act of 2009.

On Friday, July 2, 2010, OMB received from the Office of the Secretary at the Department of Health and Human Services (HHS) for review Health Information Technology:  Initial Set of Standards, Implementation Specifications, and Certification Criteria for Electronic Health Record Technology; Final Rule.  The Interim Final Rule was issued on January 13, 2010, was effective February 12, 2010, and the public comment period ended on March 15, 2010.  From the Abstract:  “The certification criteria adopted in this initial set establish the technical capabilities  and related standards that certified electronic health record (EHR) technology will need to include in support of the Medicare and Medicaid EHR Incentive Programs.”

On Monday, July 5, 2010, OMB received from HHS’ Center for Medicare & Medicaid Services (CMS) for review Electronic Health Record (EHR) Incentive Program; Final Rule. The Notice of Proposed Rulemaking (NPRM) was issued on January 13, 2010 (75 Federal Register 1843), and the public comment period ended on March 15, 2010.  From the Abstract:  “The Medicare and Medicaid Health IT provisions in the American Recovery and Reinvestment Act of 2009 promote the adoption and meaningful use of certified electronic health records (EHRs).  The Recovery Act authorized incentive payments for eligible professionals (EPs) and hospitals participating in Medicare and Medicaid for becoming meaningful users of certified EHRs.  The law established maximum annual incentive amounts and includes Medicare penalties for failing to meaningfully use EHRs beginning in 2015, for professionals and hospitals that fail to adopt certified EHRs.”  This rule outlines statutory deadlines for the programs:

January 1, 2011:  Date can start incentive payments to EPs (Medicare)

October 1, 2010:  Date can start incentive payments to hospitals (Medicare)

The rule “[e]stablishes policies and procedures required before the incentive program can begin.  Additionally, supplemental payments are available in 2011 and 2012.  If eligible professionals and hospitals are not meaningful Electronic Health Record users by 2015, there will be a Medicare payment adjustment imposed.”

These two rules go together.  Because of upcoming deadlines, and the information contained therein relates to the Final Rule published in the Federal Register on June 24, 2010:  Establishment of the Temporary Certification Program for Health Information Technology; Final Rule (75 Federal Register 36157), it is likely that OMB will expedite review of the two referenced final rules and publication in the Federal Register will occur shortly thereafter.  (20100706)

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