Billions of dollars will be available to health care providers using health information technology (health IT). Payments, which could total over $40 billion over the life of the program, may start as early as 2011 for those who are well prepared and make certain decisions now. Recently issued regulations have now provided guidance on how providers will qualify for and receive payments.

The Medicare and Medicaid incentive programs were established by the American Recovery and Reinvestment Act (ARRA)1 for certain health professionals and hospitals that adopt qualified health IT. ARRA also provided that under Medicare, whether or not these providers qualify and receive the incentives, they must meet the health IT use requirements by 2015 or face penalties.

Highly anticipated proposed and interim final regulations outlining the requirements for receiving the incentives were released recently. On December 30 the Secretary of Health and Human Services (HHS) issued two of three coordinated rules related to the adoption and “meaningful use” of certified electronic health records (EHRs). The first, an interim final rule prepared by the Office of the National Coordinator for Health Information Technology (ONC), sets forth the initial set of standards, implementation specifications, and certification criteria for these EHRs.

The second is a proposed rule from the Centers for Medicare and Medicaid Services (CMS) covering the mechanics of implementing the Medicare, Medicare Advantage and Medicaid EHR incentive programs. These two sets of regulations, along with another regarding the process for certification of EHR technology that is still under development, must be read together to achieve a full understanding of the Administration’s initial implementation strategy. HHS is seeking comment on both. Comments are due March 15, 2010.

The most anticipated proposals are those that describe what HHS will require in connection with achieving and demonstrating the “meaningful use” of health IT by providers, as required by HITECH. Three stages are proposed, to be phased in over the life of the incentive programs. Detailed criteria are proposed for stage 1, and proposed changes outlined for later stages, in order to elicit feedback from the public. The requirements will become more rigorous over time, but HHS states its intention to balance the need for rigor with the ability of the technology to deliver and of providers to implement. For Baker Donelson's comprehensive look at the proposals - including provider eligibility and the calculation and timing of payments - as published in the January 8, 2010 edition of Health Lawyers Weekly, click here.


  • Understand if you qualify for payments as an eligible professional or hospital
  • Determine incentives that might be due or penalties that could be assessed for failure to meet the requirements
  • Understand the requirements related to the technology and how it is used
    • standards for the technology
    • "meaningful use" criteria
  • Provide feedback to HHS on the proposals through the comment process by March 15, 2010