Freezing the code sets will allow organizations to focus on the system change without managing code updates at the same time. The implementation deadline for ICD-10-CM/PCS is October 1, 2013.

Under the proposal, the last regular update of ICD-9-CM and ICD-10-CM/PCS prior to ICD-10 implementation would occur October 1, 2011.

Limited updates to incorporate new diseases and new technology would be permitted on October 1, 2012, and October 1, 2013.

Regular updates of ICD-10-CM/PCS would resume in 2014.

The proposal is similar to recommendations AHIMA published last November, although AHIMA recommended that only urgent updates be considered in 2012 and 2013.

CMS and CDC are soliciting comments on the code set freeze proposal. Comments may be e-mailed to Pat Brooks at CMS and Donna Pickett at CDC. The proposal may be published in the IPPS rule this spring, although that was not certain at the time of the meeting. A final decision is expect no later than this summer.

The program, funded under the American Recovery and Reinvestment Act, promotes nonproprietary health information exchange based on national standards. In total, 56 states, eligible territories, and qualified state designated entities received awards. 

Awardees are responsible for increasing connectivity and enabling patient-centric information flow to improve the quality and efficiency of care within and across states.

Preceding papers in this series have reviewed the requirements in the notice of proposed rulemaking on meaningful use, published by the Centers for Medicare and Medicaid Services in January 2010. The eighth paper offered an overview of AHIMA’s comments on the proposal. This ninth and final paper highlights AHIMA’s comments on the related interim final rule on standards for certification, including the accounting of disclosure standard.

In order to be eligible for the meaningful use incentive program, healthcare providers must use EHR technology that meets certification standards set by the federal government. On January 13 the Office of the National Coordinator for Health IT (ONC) published an interim final rule for these standards, which became effective February 12. However, the rule is not final, and the comments that ONC receives until March 15 could affect the content of the eventual final rule.

AHIMA’s comments on the IFR were prepared by members and staff. AHIMA has been involved in both the creation of standards through active participation in standards bodies such as Health Level Seven International (HL7) and as a founder of the Certification Commission on Health Information Technology (CCHIT).

[Note: This March 10 overview is based on a draft of AHIMA's comments. On March 15 this post will be updated with a link to the Association's final, submitted comments.]

General Comments on the IFR

AHIMA begins its general comments by asking for clarification of the various bodies that now could be involved with the establishment of health IT standards as well as certification criteria, testing, and other roles that have previously involved groups such as the Healthcare Information Technology Standards Panel, standards bodies, and CCHIT. AHIMA also notes the current involvement of health information management professionals with standards and the need for a national approach and consistent interoperability formats.

The Association stresses the need for ONC and the Department of Health and Human Services to continue to communicate clearly to the industry on the impending HIPAA 5010 and ICD-10-CM/PCS implementation deadlines to ensure that providers do not ignore these requirements while pursuing the meaningful use program.

AHIMA calls for ONC to expand the definition of a qualified EHR to include the ability to produce a health record for legal, business, and disclosure purposes. AHIMA goes on to raise questions on ONC’s definition of disclosure, noting concerns regarding disclosures from the EHR and disclosures that might occur within or between health information exchange organizations. (This is also a concern related to the accounting requirements.)

The Association’s comments also request specific criteria that would ensure a qualified product meets the need for a legal EHR and cites the HL7 Records Management and Evidentiary Support Functional Profile as an established source for those criteria.

AHIMA’s comments also reflect recommendations from the Health IT Policy work groups related to incorporation of clinical lab test results into the EHR as structured data and the need for more detail on how to calculate reporting metrics to substantiate meaningful use functionality reporting.

The Association requests clarification on the “electronic access” described in the IFR. AHIMA suggests that the objective be restated to “Provide patients with secure and timely electronic access.” Further AHIMA requests that ONC address the necessary security and encryption requirements needed to support the objective.

In Support of the CCD and QRDA

There is some debate on whether the rule should adopt the CCR or CCD format. Within its comments AHIMA comes out clearly in favor of the CCD because it has already been approved by the Health Information Technology Standards Panel.

AHIMA likewise comes out in favor of using the HL7 Quality Reporting Document Architecture (QRDA) standard and Implementation Guide, indicating the value of this standard and its relationship to the HL7 Clinical Document Architecture. AHIMA urges ONC to include QRDA as an adopted quality reporting standard during meaningful use stage 1, noting that “adopting QRDA now will prevent switching of standards and rework for vendors in the future.”

Citing the Health Information Exchange work group’s recommendations at a recent Health IT Policy Committee meeting, AHIMA states its support to extend the same certification criteria for hospital lab reports to all lab result reporting and not just to public health as proposed. AHIMA notes that clarifying this expectation will support hospital laboratory results delivery to eligible professionals attempting to comply with the meaningful use requirements.

Gaps in the Certification Standards

AHIMA raises its concern that the proposed standards are targeted to specific functionality and do not address standards for basic EHR functionality. AHIMA notes that CCHIT has already developed consensus-based certification criteria for both inpatient and ambulatory EHRs; however, ONC made a conscious determination to not adopt previously recognized certification criteria in the IFR.

This, AHIMA states, leaves a large gap between the previous standards and the new limited targets that ONC proposes, and the Association makes several recommendations to eliminate this gap. AHIMA comments, “We are concerned that the proposed standards will not adequately support the stated goals of healthcare improvement and adequate privacy and security because of missing foundational requirements for EHR systems and modules. Meaningful use will not be effectively achieved if the underlying data is not accurate, complete, and of unassailable integrity. The government has not identified any standard for underlying EHR systems or modules that support system and data integrity, authentication standards, and non-repudiation.”

AHIMA ends its comments by raising several questions with regard to collection of information regarding the use of the EHR and the required audit logs.

Accounting of Disclosures

The IFR includes a simple standard for the accounting of disclosure provisions called for under ARRA, which extends the HIPAA accounting of disclosure provision to include disclosures from EHRs for uses of treatment, payment, and operations.

AHIMA commented on this standard in a separate letter because the accounting of disclosure issue is of such concern to its members. [Updated March 12 with link to a copy of AHIMA's final, submitted letter.]

In its comments AHIMA notes that although the standard is simple-calling for the capture of just four data elements-it still represents a major challenge for the industry because few EHR products are currently capable of tracking disclosures. Accounting is still a manual process in most provider organizations, and disclosures are typically decentralized across multiple departments and IT systems.

AHIMA agrees that consumers have a right to know to whom their record was disclosed. However, given the number of legacy systems to be adapted and the cost of adopting new systems, the Association believes the industry cannot meet the timetable set by the statute, and not without significant cost. It recommends that ONC modify the compliance deadlines to better reflect the work and cost involved.

Further, AHIMA suggests that it would be helpful to the healthcare industry and consumers to understand the issues and costs associated with the accounting of disclosure requirement. Because disclosures occur through systems beyond the EHR, this estimate should include all systems in an entity that must track disclosure, not just the EHR system.

Extending the original HIPAA accounting provisions to include treatment, payment, and operations raises questions and concerns about how the IFR intends to define an entity (e.g., a specific provider or an entire enterprise) and exactly what transfers are covered (e.g., disclosures to physicians in a hospital EHR network who are not hospital employees).

AHIMA also notes that while the certification standards apply to the EHR, many of the disclosures possible under its interpretation of the rule come from systems outside the EHR. The Association asks for clarification on whether ONC intends to suggest that an EHR is all records within the medical enterprise, or at a minimum any system that contains protected health information.

Although the standard identifies the data elements to be captured, AHIMA’s notes in its comments that the industry will require standards for how those data are to be represented (e.g., the formats for date, time, and patient name). The Association also comments that the description of the disclosure will of necessity be a coded process, and it asks who will designate a code set for this use.

Given the volume of disclosures that even a small physician practice will log, even abbreviated descriptions will come to require considerable server space. AHIMA notes that striving for simplicity and uniformity in the rule will help minimize administrative costs.

Download a PDF version of this paper. For more ARRA resources and ongoing analysis of future regulation, visit www.ahima.org/ARRA.

***

Changes to CPT codes for 2010 include 219 additions, 141 revisions, and 63 deletions. This article highlights some of the more notable changes; a comprehensive list can be found in appendix B of the 2010 CPT coding book. The changes took effect January 1.

Resequencing

The most notable change, and a new concept to CPT, is resequencing. Resequencing allows related concepts to be placed in a numerical sequence regardless of the availability of numbers for sequential numerical placement. It supports the integrity of the data inherent in codes and descriptors by eliminating the disruption of the code history caused by renumbering. The resequencing will extend the current five-digit numbering scheme while improving the growth and flexibility of CPT content and the use of CPT codes in electronic products.

Navigational alerts are used throughout the CPT coding book to assist users in locating resequenced or out-of-sequence codes. These include a “#” symbol (preceding any other symbols applied to the code) to indicate a resequenced code. The # symbol also references the location where the code would have been found numerically (with the code number as a place holder), directing the user to the subsection where the resequenced code with the # symbol is located. Cross references, parenthetical notes, and introductory notes with code ranges affected by resequenced codes are more explicit.

Resequencing example:

▲ 21555, Excision, tumor, soft tissue of neck or anterior thorax, subcutaneous; less than 3 cm

#● 21552, 3 cm or greater

▲ 21556, Excision, tumor, soft tissue of neck or anterior thorax, deep, subfascial, (e.g., intramuscular); less than 5 cm

#● 21554, 3 cm or greater

▲ 21557, Radical resection of tumor (e.g., malignant neoplasm), soft tissue of neck or anterior thorax; less than 5 cm

There are 27 resequenced codes for 2010 and a new appendix in CPT, appendix N, that summarizes them. Appendix M will be retained for a permanent crosswalk of all previously deleted and renumbered codes for continuity of information. It was not necessary to modify the index of the CPT book due to resequencing.

The resequencing initiative offers multiple benefits for CPT, including an extended lifespan with room for increased growth and flexibility as well as a contemporary numbering convention that will improve the use of CPT codes in electronic formats.

E/M Codes

There are no new codes in the evaluation and management section in 2010, but there are extensive revisions to the guidelines for the consultations, office or other outpatient consultations, and inpatient consultations sections. In addition, editorial revisions were made to the nursing facility services codes and additional revisions were made to the guidelines for prolonged services without direct (face-to-face) patient contact.

CPT 2010 has provided a new definition for a physician–initiated consultation. It states, “A consultation is a type of evaluation and management service provided by a physician at the request of another physician or appropriate source to either recommend care for a specific condition or problem or to determine whether to accept responsibility for ongoing management of the patient’s entire care or for the care of a specific condition or problem.”

Consultations initiated by a patient or family member are reported with the appropriate office visit, home service, or domiciliary/rest home care codes as appropriate, rather than the consultation codes.

Requests for consult by a physician or other appropriate source, the consultant’s opinion, and any services ordered or performed should be documented in the patient’s medical record. A written report must be provided back to the requesting physician or other appropriate source.

For inpatient consultations, only one consultation should be reported by a consultant per admission with any subsequent services during the same admission reported using subsequent hospital care codes or subsequent nursing facility care codes. This includes services to complete the consultation, monitor progress, revise recommendations, or address a new problem.

Surgery

Musculoskeletal System

The musculoskeletal system represents the single largest group of changes in CPT 2010, with 41 new and 54 revised codes for more specific reporting of soft tissue tumor removals. In addition, introductory guidelines related to excision of subcutaneous soft tissue tumors, excision of fascial or subfascial soft tissue tumors, radical resection of soft tissue tumors, and radical resection of bone tumors were added.

Codes 21011, 21012, 21013, 21014, and 21016 were added to describe the excision of soft tissue tumors of the head. The classification of these codes is based on location and size of the tumor. Codes 21931, 21932, 21933, and 21936 were also added to describe tumors of the back and flank and are similarly classified. Codes 22901–22905 identify excision of soft tissue tumors of the abdomen.

Respiratory System

Two new codes have been added under bronchoscopy (31622). Code 31626 was added to describe bronchoscopy with placement of fiducial markers, performed in conjunction with navigational bronchoscopic procedures. Code 31627 was established to describe bronchoscopy with computer-assisted, image-guided navigation, also referred to as navigational bronchoscopy.

Cardiovascular System

Codes 33981–33983 were added in the ventricular assist device/cardiac assist section to describe the work involved in replacing a ventricular assist device. These codes include the removal of the existing pump as well as replacement. New guidelines have also been added to instruct coding professionals on how to report codes associated with this procedure.

Digestive System

Although no new codes were added to this section, nearly all of the codes under the excision subsection in the anus section have been editorially revised and some resequenced for proper placement. New guidelines were also added to clarify use of these codes.

Nervous System

Codes 63661 and 63662 were added to identify removal of spinal neurostimulator electrode array(s) or plate/paddle(s), respectively. Codes 63663 and 63664 were also added to identify the revision and replacement of array(s) or plate/paddle(s), respectively. These codes will allow differentiation of the work involved in revision and replacement compared to removal of these devices.

A new subheading was added for paravertebral spinal nerves and branches, with six new codes for reporting paravertebral facet joint injections with image guidance specified in the code descriptors to be inclusive components. This was done to end confusion regarding facet joint and facet joint nerve injections. Six new codes (64490–64495) identify the spinal level of the injection and include add-on codes for additional levels.

Radiology

The most significant additions to the radiology section are a series of codes for CT colonography (74261–74263), which include the deletion of category III codes 0066T and 0067T. New codes 78451–78454 and updated guidelines for myocardial perfusion imaging procedures were also added to this section.

Pathology and Laboratory

Additional guidelines were added to panel codes 80047–80076 to provide direction for reporting tests with overlapping codes. The guidelines direct coding professionals to report the panel that incorporates the greater number of tests to fulfill the code definition and report the remaining tests using individual test codes.

Additionally, the immunoassay codes (83516–83520) have been revised to distinguish the qualitative and semiqualitative tests from the radioimmunoassay and quantitative tests.

Medicine

A new code was added and another code revised related to the need for national vaccination for H1N1. These changes were made after the publication of the codebook and therefore are not included in the CPT 2010 codebook. The codes are:

● 90470, H1N1 immunization administration (intramuscular, intranasal), including counseling when performed

▲ 90663, Influenza virus vaccine, pandemic formulation, H1N1

Category II Codes

Although the use of category II codes is optional, the category II section is the fastest growing section of the book. This section contains 98 new codes for quality improvement measures, nine new clinical conditions, and 46 revised clinical conditions.

The alphabetic index of these clinical conditions also was removed from appendix H. It was transferred to the AMA Web site at www.ama-assn.org/go/cpt.

Category III Codes

Eleven category III codes were added and 22 codes deleted. Of the 22 deleted, seven codes were converted to category I codes, and the remaining 15 have been archived without meeting the criteria for conversion to category I codes.

References

American Medical Association (AMA). CPT 2010 Changes: An Insider’s View. Chicago, IL: AMA, 2009.

AMA. Current Procedural Terminology (CPT) 2010. Chicago, IL: AMA, 2009.

Preceding papers in this series have reviewed the requirements in the notice of proposed rulemaking on meaningful use, published by the Centers for Medicare and Medicaid Services in January 2010. This paper highlights AHIMA’s comments on the NPRM and links to the full document.

[Updated March 12 with link to a copy of AHIMA's final, submitted comments]

The Centers for Medicare and Medicaid Services (CMS) released its proposal for the meaningful use program as a notice of proposed rulemaking (NPRM) in part to solicit comment on the details of this complex initiative prior to proceeding with the rulemaking process. Comments are due March 15.

CMS intends to post the final rule in late spring or early summer. The number and variety of comments it receives will affect the final rule’s timeliness as well as its content.

AHIMA’s comments on the NPRM were prepared by its members and staff, who reviewed and analyzed not only the NPRM itself, but all related activity beginning with initial testimony taken at the National Committee on Vital and Health Statistics hearings in April 2009 through the recommendations of the Health IT Policy and Standards Committees and CMS’s own comments within the NPRM.

AHIMA has focused its comments on subjects that affect the health information management profession directly and on which it has direct expertise.

The Association’s intention in posting a draft preview of its comments is to offer perspectives that individual members or state associations might want to consider as they write their own comments. It is not AHIMA’s intention that members or state association resubmit this same set of comments under their own names.

Meaningful Use

[Note: Page numbers refer to AHIMA’s draft comments.]

AHIMA supports the payment year concept proposed by CMS. AHIMA also supports the concept of beginning year 1 with a 90-day eligibility period and using the fiscal or calendar year of eligible hospitals (EHs) or eligible providers (EPs) (p. 2).

AHIMA also indicates its support for the proposal that Medicare and Medicaid programs employ the same definitions and objectives in the interest of making the incentive programs as uniform and simple as possible.

While the Association also agrees with the three-stage concept proposed by CMS, it raises its concern about the time available for vendors and providers to gear up for the program. AHIMA also underscores its concern that there must be significant integration of clinical workflow, data quality processes, and technology (pp. 2–3).

AHIMA points out that the NPRM uses the term “evidence-based order set” but does not define it. The Association therefore proposes the following definition:

“Evidence-based orders sets are sets of orders for services and/or medications that are considered the most effective for a given condition and are listed in the sequence that provides the most efficacies for treating the findings and/or obtaining the best results. They are based on best practices that have been published and often are more efficient and cost-effective than less structured traditional approaches. These sets are incorporated into EHR’s CPOE and will prompt the physician when an order is entered to consider other tests and/or medications in addition to or in lieu of the original order entered.”

Criteria and Functionality Measures

AHIMA turns considerable attention to the criteria for meaningful use and the health IT functionality measures, discussing the level of requirements and reporting flexibility (p. 3). It further comments on the need for feedback in the reporting process, parallel reporting requirements from other CMS programs, and the attestation program that CMS has proposed (pp. 3–4).

The Association raises concern with the testing of the measurements or metrics used in the measurement process as well as the manual data collection that will be required. Throughout its comments AHIMA expresses concern that the manual requirements caused by the current lack of integrated systems could deter providers from electing to participate in the program (p. 5).

AHIMA also raises concerns on the testing required of providers to demonstrate meaningful use. Most of the NPRM requirements call for one test to demonstrate the abilities of the EHR system. AHIMA suggests that attempting such a test might require considerable effort from providers given the lack of infrastructure and networking at this time and in the near future (pp. 5–6). This difficulty also could deter providers from taking part in the program.

Within its comments the Association offers feedback on the functionality measures for eligible professionals (pp. 6–14) and eligible hospitals (pp. 14–21). These comments are presented with their measures in a table to aid readability.

Among the comments related to EPs, the Association recommends that:

• CPOE requirement be held until stage 2
• The drug check requirements be merged with those of e-prescribing
• The problem list not be generated from coded data and that eventually SNOMED-CT be used
• CMS clarify the rules on medications lists
• Laboratories be required to use standards-based reporting
• Eligibility and claims requirements should not be required because they are not available in many EHRs that EPs use
• CMS clarify requirements for consumer access to electronic information
• Progress notes be required in stage 1

Many of AHIMA’s comments with regard to EHs mirror those made regarding EPs, but the Association also comments on:

• The need to clarify the use of SNOMED-CT and ICD classifications (noting that AHIMA has long advocated that the US should adopt SNOMED-CT) 
• The collection of race and ethnicity data (which AHIMA supports) and body mass index in age groups 2–20 (which AHIMA does not support for EHs at this time)

Quality Measures

Given its extensive work on quality measures, AHIMA comments in depth on the proposed submission of clinical quality measures (pp. 23–26).

The Association calls for consideration of the measures themselves as they apply to different provider groups and different methods of submission. AHIMA’s comments are consistent with its previous calls for uniform reporting of clinical quality measure across all health plans and providers and its advocacy for an agreed-upon set of data to be captured in EHRs that will enable quality reports to be generated uniformly and allow providers to collect data once and report them for many subsequent uses.

Finally, AHIMA notes its understanding of CMS’s proposal to recognize only hospital inpatient services initially; however, the Association states its concern for the impact this could have on hospital-based outpatient clinics.

AHIMA also comments that if EHRs are meant to support patient-centered healthcare, then the meaningful use programs should include outpatient clinics and long-term care facilities. Doing so enables the continuity of a person’s care through the use of EHRs across the care continuum and health information exchange (p. 27.)

This is the last paper in the series to address the meaningful use NPRM. The next and final paper will offer an overview of AHIMA’s comments on the certification standard interim final rule from the Office of the National Coordinator for Health IT, which is closely related to the meaningful use NPRM.

Download a PDF version of this paper. For more ARRA resources, visit www.ahima.org/ARRA.

Professionals and hospitals seeking to receive payments under the program must use EHR products that meet federal criteria. The meaningful use program was created under the HITECH Act, part of the American Recovery and Reinvestment Act signed in February 2009.

The meaningful use program is scheduled to begin October 1 for hospitals and January 1, 2011, for professionals. In order to get the certification program running as quickly as possible, ONC is proposing a temporary certification process that will serve until a permanent program makes its way through the rulemaking process. The temporary program is expected to run through 2011.

The phased approach “provides a bridge to detailed guidelines to support an ongoing program of testing and certification of health IT,” wrote David Blumenthal in a March 2 e-mail announcing the rule.

Under the temporary program, ONC would authorize organizations to assume many of the responsibilities that will eventually be fulfilled under the permanent certification program. The proposed permanent program would transition much of the responsibility for testing and certification to organizations in the private sector, according to the announcement.

ONC anticipates issuing separate final rules for each of the proposed certification programs, according to an online FAQ. It plans to issue a final rule for the temporary program around the same time that the final rules for meaningful use stage 1 and standards and certification criteria appear. It expects to issue a final rule for the permanent certification program by early fall of this year.

Any organization or consortium of organizations that can “successfully demonstrate competency with internationally recognized standardized certification and testing standards and methods” may apply for the program, according to the FAQ. ONC will begin accepting applications when the final rule for the temporary program is published.

The meaningful use certification program is independent of any other certification initiatives, such as that of the Certification Commission for Healthcare Information Technology.

ONC’s NPRM on the certification program follows two closely related rules published at the start of the year. In January the Centers for Medicare and Medicaid Services published an NPRM describing the qualification requirements, objectives, and measures of the meaningful use program itself. At the same time, ONC published an interim final rule defining the technical standards and certification criteria for EHR products.

HHS will accept comments on the temporary program for 30 days following publication in the Federal Register. It will accept comments on the permanent program for 60 days.

Enforcement of the rule is currently scheduled to begin June 1, but several recent events may keep the rule in limbo.

FTC: A Wide View of “Creditors”

An amendment to the Fair and Accurate Credit Transaction Act of 2003 created the Red Flags Rule, which requires financial institutions and any institutions considered “creditors” to develop, implement, and monitor identity theft prevention programs.

Congress gave the FTC authority to develop and enforce the rule. After studying the act, the FTC determined that the rule should cover not just financial institutions but any business that acted as a creditor by providing a service and then billing after the fact or in post-service installments.

That included healthcare providers, lawyers, accountants, and others. Healthcare providers are open to identity theft and covered by the rule, FTC officials said, because thieves can obtain treatment using a victim’s identity and then leave the victim with the bill.

FTC published its rule in November 2007 and set the enforcement date as November 2008. Meeting with resistance and continuing requests for clarification, it began announcing a series of delays.

Supporters of the rule say a lack of enforcement is leaving healthcare providers open to medical identity thieves. But opponents say the FTC overstepped its authority and unfairly included healthcare under the rule, and they want the rule amended.

Groups like the American Medical Association and American Dental Association have been lobbying the FTC and Congress to exempt healthcare organizations. The FTC has resisted, saying it does not have the authority to exempt any industry that qualifies as a creditor under the terms of the law. Only Congress or the courts can create an exemption, it says.

And, indeed, Congress and the courts have gotten involved.

House of Representatives: A Burden on Small Business

In October 2009 a bill sped through the House of Representatives that would exempt healthcare, legal, and accounting practices of 20 or fewer employees from the Red Flags Rule. The bill passed unanimously and now is awaiting a hearing with the Senate Committee on Banking, Housing and Urban Affairs.

Supporters of the bill claim that Congress only intended the rule to cover larger financial institutions and other traditional lenders and that the FTC has created an undue burden on small practices.

The rule “would force thousands of small businesses to comply with burdensome, expensive regulations by forcing them to develop and implement an identity theft program,” said Rep. John Adler (D-NJ), one of the bill’s sponsors, in introducing the bill to the House.

However, groups including AHIMA oppose the exemption, noting that nearly half of healthcare providers operate in practices of six employees or fewer, and exempting them would leave a large share of providers without any requirement to implement medical identity theft prevention plans.

It is unlikely that the Senate committee will get to the House bill before the FTC’s June 1 enforcement deadline, according to Don Asmonga, director of government relations at AHIMA. He expects the committee to work on a long list of other issues.

If the Senate does not act on the bill before Congress adjourns in October, the current bill will die and would need to be reintroduced in the House next year.

The FTC issued its most recent postponement to allow the Senate time to consider the House bill. With the enforcement deadline fast approaching, the FTC has not yet decided what to do if the Senate does not act before June 1, says Naomi Lefkovitz, an attorney with the FTC.

US District Court: “Plainly Erroneous”

The rule has landed the FTC in court, also. Trade associations have launched lawsuits against the FTC to exempt their industry professionals from the rule, most notably the American Bar Association.

In October 2009 the US District Court for the District of Columbia ruled that attorneys should be exempted from the rule because the FTC’s inclusion of attorneys as creditors was “both plainly erroneous and inconsistent with the purpose underlying the enactment of the FACT Act,” court documents state.

Soon after the court’s ruling, the American Institute of Certified Public Accountants filed a similar lawsuit asking that accountants also be exempted from the rule.

If healthcare providers want an exemption, experts following these cases expect they will need to file a lawsuit, also.

No lawsuit had been filed by March; however, the American Medical Association has opposed the inclusion of physicians in several letters to the FTC.

“This regulation adds additional financial and administrative burdens upon physician practices given that it duplicates existing Health Insurance Portability and Accountability Act privacy and security requirements,” AMA executive vice president Michael Maves wrote in one letter.

The AMA also argues that practice physicians are not creditors because most do not “regularly extend, renew or continue credit.”

Compliance Date Long Past

Healthcare providers should not wait to see if the June 1 deadline holds firm, says Chris Apgar, CISSP, president of healthcare consulting company Apgar and Associates. He reminds healthcare professionals that only the rule’s enforcement deadline has been delayed—the compliance deadline passed more than two years ago when the FTC published its final rule.

According to the practice brief, “A single one-size fits all map might seem like a reasonable solution; however, such a map would mean the code sets were so similar that there would be no point in transitioning to ICD-10-CM/PCS. The correlation of specificity and meaning between the two code sets is not that simple.”

Appendix A, “Examples of Complexity in Applied Mappings,” outlines examples of complexity in applied mappings, which illustrate why a one-size-fits-all map is not possible.

Appendix B, “Glossary of Terms,”  outlines  definitions for the terms used in the brief.

Members may read all stories online in the AHIMA Body of Knowledge. Select features and practice briefs are also available publicly.

March 2010

Features

• The Year of the Audit, by Chris Dimick
• Compliance in Practice: Mitigating Risk in Clinics and Physician Practices, by Steve Emery; Jan McDavid, Esq.; and Deborah Robb, BSHA, CPC, RMAI, RPI
• A Model EHR: Status and Next Steps for an International Standard on EHR System Requirements, by Donald T. Mon, PhD

In Addition

• Information: “Healthcare’s Most Important Resource,” by Chris Dimick

Practice Brief

• Putting the ICD-10-CM/PCS GEMs into Practice

Working Smart

• Access, Use, and Disclosure, by William M. Miaoulis, CISA, CISM
• Evaluating Alerts and Triggers, by Diana Warner, MS, RHIA, CHPS
• SNOMED at the Point of Service, by Robert H. Dolin
• Managing Outside Information, by Deborah Kohn, MPH, RHIA, CPHIMS, FACHE, FHIMSS

Coding Notes

• Keeping It Clean: How to Improve Claim Collection Rates, by Karen Bowden, RHIA
• ICD-10-PCS Root Operation Groups, by Ann Zeisset, RHIT, CCS, CCS-P

Preceding papers in this series have reviewed the requirements in the notice of proposed rulemaking on meaningful use, published by the Centers for Medicare and Medicaid Services in January 2010. This paper summarizes the proposed process for qualifying for the program and also offers a look at the program’s next steps.

CMS published its program requirements as a notice of proposed rulemaking (NPRM) in order to solicit public comment. That comment period closes March 15. CMS will then proceed to write a final rule with the assistance of the Office of the National Coordinator for Health Information Technology (ONC). The rule will then be reviewed by the Office of Management and Budget before its official publication in the Federal Register.

CMS is targeting late spring or early summer for publication. The number and variety of comments will affect the timeliness as well as the content. For the most part, it should be presumed that the proposed requirements will not be significantly increased in a final rule. The debate over the NPRM has been whether there are too many reporting requirements, and indeed CMS has requested comment to this effect, and the best that can be predicted is that some requirements will be eliminated in the final rule.

For eligible hospitals, the meaningful use program is scheduled to begin FY 2011, which for the government starts October 1, 2010. The program begins January 1, 2011, for eligible professionals (EPs). Thus the sooner CMS can produce a final rule, the more time providers will have to assess their readiness and begin preparing to qualify. Final definitions also will allow the regional extension centers, IT vendors, and the Medicaid and Medicare programs to prepare.

Each of these parties is currently trying to determine which provisions of the NPRM will become requirements under the final rule. They face similar uncertainty in considering the ONC’s related rule on IT certification standards. The requirements outlined within ONC’s interim final rule identify the standards and criteria that will enable the meaningful use reporting through an electronic health record (EHR).

In the coming weeks and months, eligible professionals and hospitals will continue to learn and assess the proposed requirements; prepare comments on their value and feasibility; determine how the proposed rule would affect their own practice, process, and systems; and identify what changes they would need to make to receive incentive payments. The starting point for each eligible provider will be different, dependent upon its current use of IT.

It should be noted that in the first year of the program, eligible participants may qualify by meeting the requirements during any 90-day period.

Qualifications for Participation

To be eligible for the meaningful use program, a professional or hospital must participate in one or more Medicare or Medicaid programs: Medicare Fee-for Service, Medicare Advantage, or Medicaid. The provider’s patient mix and volume will to some extent dictate which program will yield the best incentive.

Eligible hospitals can qualify for both Medicare and Medicaid incentives; however, EPs must choose between the programs, and they have only one opportunity to switch their choice before 2015 (p. 1904).

EPs that see Medicaid patients from more than one state may receive incentive payments from only one state, but they can change states each year. The incentive payment should be the same no matter which state the provider chooses, but states have the option of adding requirements in addition to those specified by CMS.

EPs participate in the incentive program as individuals, and it will be up to the individual and the practice how the individual might reimburse the organization. For purposes of the program, CMS defines a physician as a doctor of medicine or osteopathy, a doctor of dental surgery or dental medicine, a doctor of podiatric medicine, a doctor of optometry, or a chiropractor. The volume and mix will be determined by the EP, not the practice.

Only short-term, acute hospitals are eligible under the Medicare proposal. Critical access hospitals will be paid under a different reimbursement rules than the Fee-for-Service program. Requirements and payments also vary for EPs and hospitals when services are rendered in a federally qualified health center or a rural health clinic.

Hospital-based physicians are not eligible for the program as proposed in the NPRM. CMS’s definition of hospital-based in this instance extends beyond the typical groups such as anesthesiologists and emergency physicians to include EPs performing more than 90 percent of their services in a hospital setting, including hospital outpatient departments on or off the campus.

The exclusion is intended to prevent duplicate payments, since CMS assumes that all of these providers are using the hospital’s EHR system. Of note is the fact that hospital outpatient services are not part of the calculation for hospital incentive payments.

The qualifications are even more specific with regard to Medicaid, which sets patient volume thresholds for EPs. Five types of professionals are eligible: physicians, dentists, certified nurse-midwives, nurse practitioners, and physician assistants practicing in a federally qualified health center or rural health clinic led by a physician assistant (p. 1930).

To qualify for Medicaid incentives, these professionals cannot be hospital-based, with the exception of EPs practicing predominantly in a federally qualified health center or rural health clinic.

The Medicaid incentive program also includes additional qualifications for acute hospitals (an average patient stay of 25 days or fewer) and children’s hospitals (separately accredited).

The incentive program related to Medicare Advantage contains its own set of additional requirements, since some entities may qualify for multiple Advantage programs (pp. 1920–28).

To avoid duplicate payments among the states and Medicare, CMS proposes a single repository that would uniquely identify each participating provider and indicate which incentive program the provider has selected.

Technology Requirements

To qualify as meaningful users, EPs and hospitals must use certified electronic health record technology as defined in the NPRM and ONC’s certification and standards IFR. ONC specifies that the standard it describes will be the sole standard to determine meaningful use eligibility.

There is some exception to the certification requirement in the Medicaid program, which allows payment to “certain Medicaid providers to adopt, implement, upgrade, and meaningfully use certified EHR technology.” Participants will have to attest that the technology—which can be either a single EHR system or a collection of EHR modules—is certified. Providers will have to work with their vendors to determine their systems meet the requirements.

The reporting methods vary over the initial two years of the program, given the capabilities of CMS and the states to receive electronic reporting (see papers 5a and 6a for providers and papers 5b and 6b for hospitals.) Initially participants will demonstrate that they meet the functional and clinical quality measures requirements through attestation. Specific reporting requirements are detailed on pages 1901–3.

As technology advances, the requirements for meaningful use and clinical quality reporting will increase in stages 2 and 3 of the incentive program. EHR systems thus must be capable of adapting to future changes, which is one requirement for certification.

Payment

State Medicaid programs have the option of starting payments in 2010; however, with a short period of time between the final rule and the end of 2010, and with a number or administrative processes to be established and tested, very few states will likely take advantage of this early payment option.

Payments will vary across each of the programs, but CMS proposes they be the same across state Medicaid programs. Payments will vary by the type of provider and when the provider enters the program. It should be noted that for the most part payments are made after the provider has invested in an EHR and its implementation.

The following table locates the detailed description of eligibility and payment processes by program and type of provider.

ARRA provides additional state grant and loan payments for EHR adoption, and the Department of Health and Human Services and ONC have already provided some funding to the states and Indian tribes for this purpose. Providers can follow up with their states to determine what additional funding might be available. The Medicare program also has an option for payment through “Entities Promoting the Adoption of Certified EHR Technology,” described on pages 1932–33, and as noted above, limited potential for payment in 2010.

CMS suggests that some of the current reporting required under Medicare and Medicaid, such as the cost report, be used in determining payment amounts. However, a number of the volume reports required for eligibility and for describing meaningful use are new, and they will require changes to internal processes.

In determining payments CMS also notes that its calculations include the cost of hardware, software, and workforce training associated with system implementations. This is described throughout the document and especially in section V, “Regulatory Impact Analysis.” However, as CMS notes, it is difficult to estimate the cost, because participation in the incentive program is voluntary and those who do participate will begin from varying starting points.

In February ONC announced funding for additional programs designed to assist providers in their EHR implementation, including the first contract awards to regional extension centers. It is too early to identify how these resources will be made available to providers, but their availability should be monitored.

This is the last paper in this series to review the NPRM. The next paper will describe AHIMA’s comments to CMS.

Download a PDF version of this paper. For more ARRA resources, visit ahima.org/arra.