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is rapidly ticking. The urgency to select EHR technology is thus understandable, but healthcare professionals must not let the deadline for incentives drive the selection process; selection of an EHR is a complex task with long-term implications. Eligibility for incentive payments requires compliance with a deceptively simple formula: EPs that demonstrate meaning- ful use of certifi ed EHR technology will be eligible to receive incentive payments of 75 percent of the provider’s annual al- lowable Medicare charges up to the scheduled maximum. Like many government programs, however, eligibility to claim the reward will require strict compliance with lengthy regulatory standards. The fi rst prerequisite, i.e., selecting a certifi ed EHR technol-

ogy, has been greatly simplifi ed; at the time ARRA was signed into law, this, and other key terms, was undefi ned. In July 2010, however, the Center for Medicare and Medicaid Services (CMS) released the fi nal rule defi ning standards for certifi ed EHR sys- tems. To qualify as certifi ed EHR technology, a system must be tested and certifi ed by the Offi ce of the National Coordinator (ONC). A list of ONC-approved technologies is now available on the Web. And, for the few healthcare providers who may already be using some form of EHR technology, be advised that existing EHR systems must be certifi ed by ONC to qualify for the Medicare and Medicaid EHR incentive programs (and ultimately to avoid penalties).

The term meaningful use was also undefi ned at the time

ARRA was signed into law, but like many key aspects of HITECH, the regulatory agencies have since clarifi ed what constitutes meaningful use: the use of a certifi ed EHR in a meaningful manner, such as e-prescribing; the use of certifi ed EHR technology for electronic exchange of health information to improve quality of healthcare; and the use of certifi ed EHR technology to submit clinical quality and other measures. In short, meaningful use will require that providers document that they are using certifi ed EHR technology in ways that can be measured in quality and in quantity.

The meaningful-use criteria will be developed in three steps over the course of the next fi ve years. Stage 1 (for 2011 and 2012) sets the baseline for electronic data capture and informa- tion sharing. Meaningful use under Stage 1 requires compliance with a core set of objectives and a menu of goals. For eligible professionals, there are a total of 25 meaningful-use objectives and to qualify for an incentive payment, 20 of these 25 objectives must be met. There are 15 required core objectives, and fi ve objectives may be chosen from a menu of 10 objectives. Stage 2 (expected to be implemented in 2013) and Stage 3 (expected to be implemented in 2015) standards for meaningful use are presently undefi ned, but will continue to expand on this baseline and be developed through future rule making.

Selecting EHR technology

There is a swarm of technology vendors eager to provide healthcare providers EHR-compliant technology and training. The promotion and marketing for HITECH dollars is epic and

aggressive. Some EHRs utilize server-based technology and some cloud-based technology. The menu of choices spans a spectrum as vast as shopping for transportation – you can hail a cab or buy a Rolls Royce. The universe of EHR technology and the population of healthcare providers are so diverse that a meaningful comparison and summary of options is impossible. Consequently, each healthcare practice will have to undertake an individualized search to fi nd the EHR technology that fi ts its specifi c needs. Implementation of all EHR technology does, however, share one common denominator: the absolute necessity of a contractual agreement. No matter the size of the practice or the type of technology selected, healthcare providers and EHR vendors will rely on a contract to ensure the parties’ mutual intent is fulfi lled.

A carefully crafted EHR contract can prevent the most obvious pitfalls that accompany any large-scale technological transformation. A good contract will ensure that the parties’ respective expectations are fulfi lled and, moreover, put a large portion of the onus of HITECH compliance on the EHR vendor, where it rightfully belongs. EHR vendors have devoted millions of dollars and countless hours studying the HITECH Act to make sure their products comply with the new law. As soon as you begin to narrow your list of potential vendors to three or four potential candidates, ask each to give you all the standard pieces of the agreement you could be expected to sign and give these documents to your attorney for review. You will very probably not get the entire agreement at this stage because many of your specifi c needs have yet to be defi ned by the vendor, but a reputable vendor should be willing to provide the basic forms. Regardless of whether you select a software sys- tem to install on your on-site hardware, or a cloud-based system (whereby the vendor maintains the software and your data off site), it is very probable your contract will be a combination of agreements, including a license to use the vendor’s propriety software; a service agreement (to train personnel and maintain the system); sub-license(s) with various pharmaceutical and medical suppliers; a proposal outlining your specifi c require- ments; a schedule setting forth the cost of services; and lastly a standard form setting forth the essential business terms (i.e., accounting, billing, payment, responsibility for data entry and coding, etc.) as well as the many sundry provisions that are a basic part of any business contract. A cursory, preliminary review by your attorney may uncover one or more highly objectionable terms or conditions that are non-negotiable, thus eliminating this vendor from further consideration. Alternatively, as a consumer you will have considerably more leverage negotiating key terms when a potential vendor knows he is one of several candidates under active consideration. The legal review need not be an exhaustive, comprehensive analysis of the transaction – that level of detail can await your selection of a specifi c vendor. But, a preliminary legal review before a fi nal vendor is selected can highlight potentially troublesome issues that can either eliminate a vendor or lead to a successful negotiation and resolution of critical terms.


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