CMS and ONC Release Stage 2 Meaningful Use and Standards Final Rules

by King & Spalding
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On August 23, 2012, CMS released a display copy of the final Stage 2 Meaningful Use criteria that eligible professionals (EPs), eligible hospitals and critical access hospitals (CAHs) must meet in order to qualify for incentive payments under the Medicare and Medicaid EHR Incentive Programs, as established by the HITECH Act (the Final Rule).  The Office of the National Coordinator for Health IT also released a final rule establishing the certification standards EHRs must meet to enable providers to achieve meaningful use during Stage 2.

Stage 2 criteria will take effect beginning in 2014 for providers that successfully attested to meeting the Stage 1 criteria during the 2011 reporting year.  CMS finalized its earlier proposal to extend the deadline by which successful Stage 1 meaningful users must satisfy the Stage 2 criteria from 2013 to 2014.

Meaningful Use Functionality Measures

CMS finalized its proposal to require eligible hospitals and CAHs to meet the criteria or an exclusion for 16 core functionality measures, and to meet the criteria for three of six menu options.  EPs must meet the criteria or an exclusion for 17 core measures, and meet the criteria for three of six menu options.  The Final Rule largely adopts the Stage 2 functionality measures set forth in the proposed rule.  Of note, CMS will require that more than 50 percent of an eligible provider's unique patients be provided with online access to their health information.  EPs must make this information available within four business days of the information becoming available to the EP, and eligible hospitals and CAHs must do so within 36 hours after an inpatient or emergency department discharge.  Moreover, more than five percent of a provider's unique patients (down from the initial proposal of ten percent) must actually view online, download or transmit such health information.  

CMS slightly revised its new requirements for computerized provider order entry (CPOE).  More than 60 percent of an eligible provider's medication orders must be generated using CPOE, while more than 30 percent of laboratory and radiology orders must be generated using CPOE.  CMS will now permit orders entered by any "credentialed medical assistant" to count toward the measure.  Previously, only orders entered by EPs or licensed healthcare professionals otherwise permitted to enter orders under state, local and professional guidelines counted toward the measure.  Providers have the option to exclude from the CPOE calculation all standing orders entered into the certified EHR.

The Final Rule adds several new measures to the set of core and menu options.  CMS added a new EP core measure, requiring successful transmission of a secure electronic message to an EP by more than five percent of the EP's unique patients.  The Final Rule also adds a new core measure for eligible hospitals: the ability to track the status of more than ten percent of medication orders, from order to administration.  Eligible hospitals and CAHs may choose a new option from the menu set, an "outpatient lab reporting" measure requiring eligible hospitals and CAHs to transmit electronically more than 20 percent of their electronic lab results to the ordering provider. 

CMS adopted its earlier proposal to permit EPs to submit functionality data as a group using a single batch file.  For measures that require EPs to send an electronic "test" transmission, a group practice may submit one test for all practice locations if all EPs in the group have access to the same certified EHR at all locations using a shared network. 

Clinical Quality Measures

The Final Rule adopts the same clinical quality measures (CQMs) set forth in the proposed rule.  Eligible hospitals and CAHs must report on 16 of 29 CQMs, while EPs must report on nine out of 64 CQMs.  CMS makes clear that providers will not be evaluated on performance of individual measures, but only on the actual reporting of the data.  Beginning in 2014, eligible providers that are beyond their first year of demonstrating meaningful use must submit CQM data electronically.  EPs may submit data as individuals through either a CMS portal or through the Physician Quality Reporting System (PQRS).  EPs also may submit data as part of a group, either as members of an accountable care organization participating in the Medicare Shared Savings Program, or as members of a PQRS group practice.  Eligible hospitals and CAHs must access a CMS portal to submit CQM data.

CMS revised the timeframe during which providers must collect and submit CQM data.  CMS initially proposed a CQM reporting period of the entire 2014 calendar year for EPs and the entire 2014 federal fiscal year (October 1, 2013 through September 30, 2014) for eligible hospitals and CAHs.  Recognizing the need among vendors and eligible providers for more time to develop and implement EHR technology that satisfies ONC's Stage 2 certification standards, eligible providers may now report CQM data only for one three-month quarter during the 2014 calendar year (for EPs) or the 2014 federal fiscal year (for eligible hospitals and CAHs).   

Hospital-Based Eligible Professionals

CMS will permit EPs who previously would not have been eligible for incentives as hospital-based eligible professionals to request a waiver from that determination if the EP can demonstrate that he/she helped fund (without reimbursement from the hospital) the acquisition, implementation or maintenance of a stand-alone ambulatory certified EHR that the EP uses in the inpatient or emergency department of a hospital.

Definition of a Medicaid Patient Encounter

For purposes of satisfying the Medicaid patient volume thresholds to qualify for Medicaid EHR incentives, EPs may count all encounters with Medicaid-enrolled patients during which the EP furnishes any service to the patient regardless of whether the State Medicaid agency makes payment for the service.  Previously, CMS only permitted EPs to count those encounters in which a Medicaid covered service was furnished. This change is not retroactive to encounters from 2011 or 2012.  States are required to adopt this change in their State Medicaid HIT Plans within six months after the Final Rule is published.

Standards and Certification Final Rule

ONC also released its final rule of the new certification standards that EHRs must meet in order to enable providers to satisfy the Stage 2 meaningful use criteria.  The standards rule permits a provider to possess only the certified EHR technology necessary for the provider to meet the meaningful use criteria to which it is attesting.  Thus, providers attesting to the Stage 1 criteria need not posses technology enabled to satisfy the Stage 2 criteria.  ONC has also added new privacy and security standards to the new certification criteria.

The display copy of the Stage 2 Meaningful Use Final Rule is available here.  The ONC final rule is available here.  Both final rules are scheduled to appear in the Federal Register on September 4, 2012.

Reporters, Christopher Kenny, Washington, D.C., + 1 202 626 9253, ckenny@kslaw.com and Joe Lynch, Washington D.C., + 1 202 626 8998, jlynch@kslaw.com.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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