Meaningful Use Final Rule Offers Some Changes and Flexibility

Health and Human Services (HHS) released the final rule on meaningful use on Tuesday July 13, 2010. The 864-page final rule, which is many weeks late from the expected delivery details the qualifications health care providers must meet to achieve the meaningful use of electronic health records.  Meaningful Use compliance will allow physicians and hospitals to qualify for thousands of dollars in stimulus funding incentives for the adoption of electronic health records.

David Blumenthal, MD, national coordinator for health information technology, said that the final rule is different from the proposed rule issued last January: It lets providers have some flexibility in choosing which measures to use for qualifications.

He said the proposed rule requires physicians to comply with 23 measures, and for hospitals 25 measures. HHS received over 2,000 comments on the rule, many containing requests for greater flexibility in determining how providers may qualify.

Key changes in the final CMS rule include:

  • Providing condition-specific patient education resources for both EPs (eligible providers) and eligible hospitals and the objective of recording advance directives for eligible hospitals, in line with recommendations from the Health Information Technology Policy Committee.
  • Greater flexibility with respect to eligible professionals and hospitals in meeting and reporting certain objectives for demonstrating meaningful use.  The final rule divides the objectives into a “core” group of required objectives and a “menu set” of procedures from which providers may choose any five to defer in 2011-2012.  This gives providers latitude to pick their own path toward full EHR implementation and meaningful use.
  • A definition of a hospital-based EP as one who performs substantially all of his or her services in an inpatient hospital setting or emergency room only, which  conforms to the Continuing Extension Act of 2010
  • CAHs (critical access hospitals) within the definition of acute care hospital for the purpose of incentive program eligibility under Medicaid.

The HITECH Act states that payments for Medicare providers may begin no sooner than October 2010 for eligible hospitals and January 2011 for EPs. The final rule aligns the Medicare and Medicaid program start dates.

Key steps in the implementation timeline include:

  • ONC began accepting applications from entities that seek approval as an ONC-Authorized Testing and Certification Body (ONC-ATCB) on July 1, 2010.
  • ONC projects that certified EHR software will be available for purchase by hospitals and eligible professionals by fall, 2010
  • Registration by both EPs and eligible hospitals with CMS for the EHR incentive program will begin in January 2011.  Registration for both the Medicare and Medicaid incentive programs will occur at one virtual location, managed by CMS.
  • For the Medicare program, attestations may be made starting in April 2011 for both EPs and eligible hospitals.
  • Medicare EHR incentive payments will begin in mid May 2011.
  • States will be initiating their incentive programs on a rolling basis, subject to CMS approval of the State Medicaid HIT plan, which details how each State will implement and oversee its incentive program.

A CMS/ONC fact sheet on the rules is available on the CMS Web site.

Michael F. Arrigo

Michael is Managing Partner & CEO of No World Borders, a leading healthcare management and IT consulting firm. He serves as an expert witness in Federal and State Court and was recently ruled as an expert by a 9th Circuit Federal Judge. He serves as a patent expert witness on intellectual property disputes, both as a Technical Expert and a Damages expert. His vision for the firm is to continue acquisition of skills and technology that support the intersection of clinical data and administrative health data where the eligibility for medically necessary care is determined. He leads a team that provides litigation consulting as well as advisory regarding medical coding, medical billing, medical bill review and HIPAA Privacy and Security best practices for healthcare clients, Meaningful Use of Electronic Health Records. He advises legal teams as an expert witness in HIPAA Privacy and Security, medical coding and billing and usual and customary cost of care, the Affordable Care Act and benefits enrollment, white collar crime, False Claims Act, Anti-Kickback, Stark Law, physician compensation, Insurance bad faith, payor-provider disputes, ERISA plan-third-party administrator disputes, third-party liability, and the Medicare Secondary Payer Act (MSPA) MMSEA Section 111 reporting. He uses these skills in disputes regarding the valuation of pharmaceuticals and drug costs and in the review and audit of pain management and opioid prescribers under state Standards and the Controlled Substances Act. He consults to venture capital and private equity firms on mHealth, Cloud Computing in Healthcare, and Software as a Service. He advises ERISA self-insured employers on cost of care and regulations. Arrigo was recently retained by the U.S. Department of Justice (DOJ) regarding a significant false claims act investigation. He has provided opinions on over $1 billion in health care claims and due diligence on over $8 billion in healthcare mergers and acquisitions. Education: UC Irvine - Economics and Computer Science, University of Southern California - Business, studies at Stanford Medical School - Biomedical Informatics, studies at Harvard Medical School - Bioethics. Trained in over 10 medical specialties in medical billing and coding. Trained by U.S. Patent and Trademark Office (USPTO) and PTAB Judges on patent statutes, rules and case law (as a non-attorney to better advise clients on Technical and Damages aspects of patent construction and claims). Mr. Arrigo has been interviewed quoted in the Wall Street Journal, New York Times, and National Public Radio, Fortune, KNX 1070 Radio, Kaiser Health News, NBC Television News, The Capitol Forum and other media outlets. See and for more about the company.

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