One part of the American Recovery and Reinvestment Act of 2009 (ARRA) (Pub. L. 111-5) established incentives for the adoption and use of electronic health record systems (EHRs). ARRA delegated to the Secretary of Health and Human Services (HHS) the authority to establish, within the parameters set forth in ARRA, regulations governing the qualification for and receipt of the EHR incentive payments.

Under the framework established in ARRA, in order to receive an EHR incentive payment, a provider would need to be a meaningful user of a certified EHR. On 30 December 2009, HHS made available the proposed meaningful use regulation (Proposed MU Rule). This regulation is expected to be published in the Federal Register on 13 January 2010, commencing a sixty (60) day comment period, leading to the publication of a Final Regulation in 2010.

The Proposed MU rule specifies the initial criteria an eligible provider and eligible hospital must meet in order to qualify for the incentive payment; calculation of the incentive payment amounts; payment adjustments under Medicare for covered professional services and inpatient hospital services provided by EPs and eligible hospitals failing to meaningfully use certified EHR technology; and other program participation requirements.1

The full article, available for download in PDF format, focuses on some of the main elements of the Proposed MU Rule. While the proposed MU Rule does address both Critical Access Hospitals and Medicare Advantage, these topics will not be discussed. The focus will be on physicians and hospitals.

Where appropriate, the relevant section of the Proposed MU Rule is referenced. The key elements relating to meaningful use under Medicare and Medicaid will be part of a new part in the Code of Federal Regulations (CFR), section 42 CFR 495. For simplicity of reference, only the new section numbers will be utilized (i.e., 495.XX).

For answers to these questions, please download the PDF.

  1. What is required for meaningful use?
  2. What are Medicaid EHR inceptive program requirements?
  3. How do I show meaningful use?
  4. Who is eligible?
  5. May hospital-based providers get EHR incentive payments?
  6. What is required for an EHR to be certified?
  7. For how long must the EHR be used in a meaningful manner?
  8. What is a payment year?
  9. What type of CPOE orders count in the hospital?
  10. May physicians receive Medicare and Medicaid incentives?
  11. May hospitals receive Medicare and Medicaid incentives?
  12. How much money may an eligible provider receive?
  13. When do I receive my money?
  14. What is the latest date to achieve meaningful use?
  15. What is lost if meaningful use can’t be achieved by 2011?
  16. Is codified date required in 2011?
  17. Are first year requirements the same in 2013 as 2011?
  18. Are the EHR incentive payments subject to audit?
  19. When will the final rule be issued?

This document is meant as a general overview and is not intended to provide legal advice or address specific situations. The discussions contained herein may in some cases elide details that may be significant to a specific situation. This discussion is not an exhaustive overview of the contents of the Proposed MU Rule, but is meant to highlight items of interested to the intended audience.

1. Medicare and Medicaid Programs; Electronic Health Record Incentive Program, Proposed Rule, 1 (30 December 2009) available here.

6 January 2010