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Electronic Health Implementation - Why the Rush?

Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A.

Under the terms of the HITECH Act, physicians can receive up to $44,000 in Medicare payments over five years beginning in 2011 for implementing an electronic health record (EHR) system. To qualify for incentives, an eligible professional must both adopt certified EHR technology and demonstrate “meaningful” use of this technology. Congress further specified that certified EHR technology must be certified as meeting the standards adopted by the Secretary of Health and Human Services.

The Department of Health and Human Services published an interim final rule (effective February 12, 2010) that specifies the Secretary’s adoption of an initial set of standards, implementation specifications, and certification criteria for electronic health record technology. The final rule will be issued sometime in 2010. 

Recent studies and surveys of physicians confirm that about half of physicians are using electronic health records.  A 2009 preliminary study by the Centers of Disease Control and Prevention reported that 40 percent of office-based physicians use electronic health records.   Nevertheless, only 20.5 percent reported having systems that meet the criteria of a basic system under the HITECH provisions, while 6.3 percent reported using a fully functional system under the new regulations.  Use of EHR in physician practices is growing. 

However, despite the potential benefits and incentives for implementing electronic health records, physician practices face significant upfront investment in implementing EHR technology.  Additionally, CMS will not enforce a penalty against practices that are not “meaningful users” of EHR until 2015.  At that point, non-EHR practices will receive a 1% reduction in Medicare fee schedule for 2015, a 2% reduction in Medicare fee schedule for 2016, and a 3% reduction in Medicare fee schedule for 2017.  The Department of Health and Human Services has the authority to decrease payments up to 5%.  Because of the high costs of implementing such EHR systems, physicians should carefully weigh both the initial upfront cost of implanting the EHR system and the yearly maintenance cost of using an EHR system against both the incentives and the penalties which will be assessed starting in 2015. 

In addition to being possibly cost prohibitive, physicians await more guidance from the Department of Health and Human Services regarding implementing EHR technology.  The Office of the National Coordinator for Health Information Technology will issue a separate Notice of Proposed Rulemaking in 2010 to describe the process for authorizing certification bodies to conduct the testing and certification of Complete EHRs and EHR Modules.  Complete EHR means EHR technology that has been developed to meet all applicable certification criteria adopted by the Secretary while EHR Module means any service, component, or combination thereof that can meet the requirements of at least one certification criterion adopted by the Secretary. A physician will not be able to fully assess the cost of implementing EHR technology until the Department of Health and Human Services provides guidance on what certification will be required to comply with the interim final rule. 

Even though advocates of electronic health records assert that electronic medical records can improve individual patient care by allowing more informed decision making; enhancing the quality of care; increasing efficiency in care; providing earlier diagnosis of disease; reducing adverse drug interactions; and increasing administrative efficiency. Each practice must weigh the pros and cons of implementing EHR technology taking into account the specific needs of that practice.  Physicians should keep in mind that they will not be penalized for not implementing EHR technology until 2015.  Despite all the hype surrounding EHR technology at the moment, physicians can take their time in assessing if, when, and how their practice will implement EHR technology.   Physicians should weigh the potential benefits of incentive payments against the substantial costs of implementing EHR in their practices before prematurely jumping onto the bandwagon of implementing electronic health records in their practice. 

NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.

 
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