On February 23, 2012, the Centers for Medicare and Medicaid Services (CMS) placed on display a proposed rule for Stage 2 of the Electronic Health Record ("EHR") Incentive Program. In this proposed rule CMS formalized an announcement made in late 2011 by Secretary Sebelius to delay the compliance date of Stage 2 meaningful use from 2013 to 2014 for providers who attested to Stage 1 in 2011. The proposed rule would also increase the number of required objectives needed to certify to meaningful use required for EHR incentive payments and would add additional reporting requirements for Clinical Quality Measures.

Proposed Requirements

The proposed Stage 2 criteria for meaningful use follows a similar structure to Stage 1, and is based on a series of objectives and measures used to demonstrate that Eligible Professionals (EPs) and Eligible Hospitals (EHs) are meaningful users of certified EHR technology.

Many of the Stage 1 core and menu objectives will remain the same in Stage 2, although the unit of measure may change. For example, the denominator for the CPOE objective is proposed to change from number of unique patients to number of measurable orders for medications. Other objectives in Stage 1 will be combined into more unified objectives in Stage 2. Stage 2 would also increase the threshold providers must achieve to demonstrate meaningful use for several objectives. CMS suggests these changes will eliminate unnecessary accounting and reporting burdens, but providers should carefully consider the operational impact such changes will have on EHR users. EPs should note that the Stage 2 proposed rule changes significantly the opportunity to avoid compliance with Menu Set objectives by meeting an exclusion. Other proposed changes include:

• Significant change to core objective "capability to exchange key clinical information among providers of care."
• Elimination of core objective "provide patients with an electronic copy of their health information" to be replaced with alternative objectives to provide patients the ability to view online, download and transmit information available to an EP or about a hospital admission.

Payment Adjustments/Reductions

CMS proposes to protect some providers who are unable to attest to meaningful use from Medicare reimbursement reductions. Exceptions to reimbursement reductions would be available for providers without access to the internet, or who experience other significant barriers to obtaining IT infrastructure. Additionally, a delay in the requirement to be a meaningful user for new EPs and new EHs that are at risk for payment reductions has been proposed, as well as a structure for CMS to grant exceptions to meaningful use requirements on a case-by-case basis in the event of natural disasters.

Clinical Quality Measures

Finally, CMS proposes a number of Clinical Quality Measures (CQM) that must be reported electronically by EPs, EHs and Critical Access Hospitals in order to qualify for incentive payments. In the fact sheet issued in support of the proposed rule by CMS, it suggested a process to submit CQM data electronically, "thereby reducing the associated burden of reporting on quality measures for providers." While alignment with other quality measures may reduce the number of quality measures that must be monitored by providers, the burden of electronic reporting may be in the eye of the reporter.

The proposed rule is scheduled for publication in the Federal Register on March 7, 2012, and comments will be accepted for 60 days thereafter (i.e., until May 6, 2012). The CMS Stage 2 Fact Sheet can be found at: https://www.cms.gov/apps/media/ fact_sheets.asp.

For More Information

If you have questions or would like to discuss making a comment to CMS, please contact:

• Jennifer Evans | 303.583.8211 | jevans@polsinelli.com
• Rebecca Frigy | 314.889.7013 | rfrigy@polsinelli.com