2000 Public Comments Later, Final 'Meaningful Use' Rules More Flexible

Lora Bentley
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Key Health Care IT Trends

The good news is that primary focus now seems to be squarely on improving the overall quality of health care and the reduction of human errors.

When you see the phrase "health care IT," what comes to mind? If you work in or around the health care industry, It's probably "meaningful use." In the HITECH Act segment of the American Recovery and Reinvestment Act of 2009, Congress set aside billions of dollars in incentive funds for health care organizations and providers that can demonstrate "meaningful use" of electronic medical records systems.


But no one really understood what "meaningful use" might require until the U.S. Department of Health and Human Services released its preliminary rules in March. And once they saw those preliminary rules, stakeholders didn't hesitate to express just how they felt. HHS received approximately 2,000 comments during the public comment period, which apparently was enough to convince the regulators to go back to the drawing board. Just this month, the final rules were released.


Health care attorney and Ropes & Gray partner Michael Beauvais describes the new rules as "a step back from the toughness of the original rules." When we talked last week, Beauvais explained some of the most significant changes.


For example, under the rules originally proposed, demonstrating "meaningful use" of an EHR system was an all-or-nothing proposition. Hospitals had to meet 23 objectives to even begin receiving money under the program. Eligible providers had to meet 25 different objectives.Under the final rules, hospitals have 14 mandatory objectives and then must choose five from the remaining 10. Doctors now have 15 mandatory objectives and then must choose five more from the remaining 10.


"There's more flexibility," Beauvais said. But that doesn't mean everyone is happy about the changes. He explained:

You've got the one side that says, "Oh, this is great." Then the other side says, "Whoa. You just diluted what we were trying to do. We wanted people to have to do all these things, and by making it easier for them to meet the test, you just weakened that."

And the shorter lists of objectives doesn't alleviate the stringent timetable in which everything must be completed, either. Doctors, for example, can get up to $44,000 total if they meet the requirements starting in 2011 or 2012, but the later they wait to get started, the lower that maximum amount becomes.


Beauvais explained:

If you're not on the ball and you don't start until 2013, the maximum you can get is no longer $44,000. It's $39,000. In 2014, the maximum is $24,000 as opposed to $44,000. In 2015, you're at zero. And that's when the penalties start kicking in.

That's why those physicians who aren't eligible for the incentives on their own - because they're emergency room doctors or other specialists who spend most of their time at hospitals - will eventually be glad, Beauvais said. If they're not eligible individually now, they can't be penalized individually later.

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