On August 23, 2012, the Department of Health and Human Services (HHS) released two final rules on the requirements for Stage 2 of the Medicare and Medicaid Electronic Health Record (EHR) Incentive Programs, addressing (1) the requirements eligible professionals (EPs), eligible hospitals and critical access hospitals (CAHs) will have to meet to achieve meaningful use, and (2) the standards EHR technology will have to meet to achieve certification for EPs and eligible hospitals to use to be eligible for Stage 2 meaningful use incentive payments.

In “Medicare and Medicaid Programs: Electronic Health Records Incentive Program—Stage 2,” HHS’s Centers for Medicare & Medicaid Services (CMS) adopts new requirements for EPs, eligible hospitals and CAHs to meet in order to achieve meaningful use in Stage 2 of the Medicare and Medicaid EHR Incentive Programs. In the final rule, CMS postpones application of the Stage 2 meaningful use requirements until 2014 at the earliest. It also provides a flexible reporting period for EPs and hospitals for 2014, to give them sufficient time to adopt or upgrade to the Stage 2 meaningful use requirements (and to avoid Medicare payment adjustments in fiscal/calendar year 2015 for failure to meet meaningful use requirements). Nearly all of the Stage 1 core and menu objectives that were proposed have been finalized for Stage 2. In Stage 2, EPs will be required to meet 20 meaningful use objectives (17 core objectives and 3 of 6 menu objectives) and eligible hospitals will be required to meet 19 objectives (16 core objectives and 3 of 6 menu objectives). With respect to measuring meaningful use, some measurement thresholds have been reduced in the final rule, and some exclusion criteria have been modified, in response to comment. For clinical quality measures (CQMs), EPs will be required to report on 9 of 64 total CQMs and eligible hospitals will be required to report on 16 of 29 total CQMs; all providers will be required to select CQMs from at least 3 of 6 key health care policy domains.

In “Health Information Technology: Standards, Implementation Specifications, and Certification Criteria for Electronic Health Record Technology, 2014 Edition; Revisions to the Permanent Certification Program for 2 Alston & Bird LLP Health Information Technology,” the HHS Office of the National Coordinator for Health Information Technology (ONC) adopts new standards, implementation specifications, and certification criteria that EHR technology will be required to meet in order to be certified as 2014 Edition EHR technology. These requirements represent the minimum standards that an EHR must possess to support the achievement of meaningful use by EPs, eligible hospitals and CAHs beginning with the 2014 EHR reporting period. In the rule, ONC adopted certification criteria to support the changes in the Medicare and Medicaid EHR Incentive Programs, including the new and revised objectives and measures for Stages 1 and 2. ONC has identified the 2014 Edition EHR criteria that are unchanged from the 2011 Edition EHR criteria, which will permit (where applicable) the use of prior certification test results for certification to the 2014 Edition EHR requirements. ONC has also revised its policy and definitions to permit EPs, eligible hospitals and CAHs to purchase only the EHR technology they need to demonstrate meaningful use. 2011 Edition EHRs can continue to be used until 2014, while EPs, eligible hospitals and CAHs can adopt 2014 Edition EHRs prior to 2014 to achieve meaningful use in such years. In the final rule, ONC has also modified the certification program to decrease regulatory burden, add flexibility, and make the certification process more efficient.

The final rules are on display at the Federal Register and will be published on September 4, 2012.

The CMS final rule, “Medicare and Medicaid Programs: Electronic Health Records Incentive Program—Stage 2,” may be viewed at http://www.ofr.gov/(X(1)S(saaslzrajb2hqosmrxcz05iq))/OFRUpload/OFRData/2012‐ 21050_PI.pdf, and is effective 60 days after publication, except for certain provisions (including the revisions to the definition of “meaningful EHR user”) which are effective upon publication. A fact sheet on the CMS final rule can be found at http://www.cms.gov/apps/media/fact_sheets.asp.

The ONC final rule, “Health Information Technology: Standards, Implementation Specifications, and Certification Criteria for Electronic Health Record Technology, 2014 Edition; Revisions to the Permanent Certification Program for Health Information Technology,” may be viewed at http://www.ofr.gov/(X(1)S(saaslzrajb2hqosmrxcz05iq))/OFRUpload/OFRData/2012‐20982_PI.pdf, and is effective 30 days after publication. A fact sheet on ONC final rule can be found at http://healthit.hhs.gov/standardsandcertification.