SZD Health Law Scan : Health Care Lawyers & Attorneys : Schottenstein Zox & Dunn Law Firm : Strategic Planning, Managed Care, Insurance : Columbus, Cleveland, Cincinnati, Central Ohio

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Provider implementation of health information technology is a priority of the current Obama administration and will continue to be a focal point of national health care reform. A major question for health care reform is who pays? In theory, cost savings and efficiencies are one source. Another may be continued payment pressures by governmental and nongovernmental payers. Perhaps, the two go hand in hand, and the only way providers can survive effectively with looming payment pressure is by implementing robust health information records and business systems. Some providers are only reluctantly "embracing" this change, but go along they must.

The American Recovery and Reinvestment Act of 2009 (ARRA 09) provides funding to increase the adoption of Health Information Technology (HIT) with the goal of creating a national health information infrastructure and network. The funds available in the stimulus bill are to provide approximately $35 billion for this purpose, with a large potion of those funds to be paid to Medicare and Medicaid providers that adopt electronic health records (EHRs) by the deadlines set forth in the statute. With payments set to begin in late 2010 (hospitals) and early 2011 (other providers), the federal government seeks to increase EHR adoption among physicians to more than 90% by 2016. This may be a tall order given that current adoption estimates for physicians are now in the low 20th percentile. Many hospitals are in the process of implementing EHRs, but they too have significant financial and technical challenges ahead of them. Many believe the ARRA 09 funding will fall well short of the need.

In May 2009, the Office of the National Coordinator for Health Information Technology (ONC) released its implementation plan titled The Health Information Technology American Recovery and Reinvestment Act Implementation Plan. The ONC's Implementation Plan met the 90-day deadline under the Health Information Technology for Economic and Clinical Health (HITECH), a section of ARRA 09. In order for a provider to qualify for funding, however, there are a number of requirements each provider must meet. The EHR must be interoperable with a health information exchange and the provider must demonstrate "meaningful use" of EHRs, which term is undefined at this time. Recommendations have been made about how to define these terms, but no definitive regulatory or other guidance has been provided in the Implementation Plan or otherwise.

The Implementation Plan provides that later this year the government will release important definitions and clarifications regarding these terms as well as describe how other aspects of the HIT stimulus package will work. It is interesting to note the Implementation Plan calls for swift action to achieve long-term improvements in health and healthcare through adoption of information technology, while at the same time the Plan acknowledges the need to finalize many of these details. The ONC has held hearings now with more to come in order to determine what "meaningful use" of EHRs really means. This process is supposed to involve significant stakeholder review, input and evaluation. While this may be the best approach, it may be a recipe for further delay in finalizing many of these critical elements of the incentive funding proposal.

As this process continues to unfold, the clock is ticking toward 2011. In addition to money, it takes time to implement large (and even small) scale EHR projects. Even though vendors will tout their products as the "solution," many providers have rightfully expressed concern that implementing the wrong system now in light of these developing standards could be a big mistake. Whether providers will have enough time to meet the 2011 timeline when significant aspects of the funding requirements have yet to be finalized remains to be seen. Providers in the near future may need to ask their legislative representative to consider additional legislation to allow providers more time to implement EHRs prior to the start of the incentive funding cycles.