HITECH - Regulations and Compliance
- “Meaningful use” adoption;
- Electronic health record security; and
- Data management capabilities between multiple doctors, hospitals, and laboratories.
The act was created to support the adoption of health care information technology and the expansion of electronic health records used by doctors, hospitals, treatment facilities, and any entity that stores this type of information.
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Free Confidential Case ReviewWhat is “Meaningful Use” of EHR?
“Meaningful use” refers to the ability of eligible professionals (“EPs”), eligible hospitals, and critical access hospitals (“CAHs”) to meet the requirements set forth by CMS. If entities were able to demonstrate compliance with the requirements, they were eligible to take part in the incentive programs and receive financial incentives.
Since 2011, the Centers for Medicare and Medicaid Services (“CMS”) has encouraged the adoption and implementation of certified Electronic Health Record (“EHR”) technology by offering incentive payments to health care providers who adhere to certain requirements.
Today, the Centers for Medicare and Medicaid Services (“CMS”) EHR Incentive Programs are now known as Promoting Interoperability (“PI”) Programs.
What are the “3 Stages of Meaningful Use?”
The “three stages of meaningful use” include:
Stage 1: Collecting and Recording Data
Stage 2: Advanced clinical processes
Stage 3: Improved outcomes
The final rule of “Stage 3” specifies the requirements that eligible professionals, eligible hospitals, and critical access hospitals must meet in order to qualify for Medicare and Medicaid electronic health record incentive payments and avoid downward payment adjustments under the Medicare EHR Incentive Program.
In addition, it also:
- changes the Medicare and Medicaid EHR Incentive Programs reporting period to a 90-day period;
- removed reporting requirements on measures that have become redundant or duplicative; and
- establishes the requirement for Stage 3 of the program to be required for all participants beginning in 2018.
What Are the Penalties for Non-Compliance?
Eligible providers who did not implement electronic medical records and electronic health records by 2015 experienced a 1% reduction in their Medicare reimbursements.
What is “MACRA?”
The Medicare Access and CHIP Reauthorization Act of 2015 (“MACRA”) ended the Sustainable Growth Rate formula that determined payments for eligible participants. Now, eligible participants may take part in the Quality Payment Program.
What is the “Quality Payment Program?”
The “Quality Payment Program” is a way for Medicare Part B participants to track and report their practices information to CMS.
The program is broken into two sections:
- Merit-based Incentive Payment System (“MIPS”); and
- Advanced Alternative Payment Models (“APMs”).
The Quality Payment Program sets minimum requirements to qualify for advanced APMs. Which program you take part in will ultimately be determined by things like the specific specialty you practice, and the size and location of your practice. Eligible participants may not take part in both advanced APMs and MIPS simultaneously. Therefore, if you are taking part in APMs, you will be prevented from taking part in MIPS.
What is the “Merit-Based Incentive Program?” (“MIPS”)
This program requires that participants collect and record data and then report that data to CMS in the hopes of earning a positive payment adjustment under MIPS. Basically, they are interested in how you or your hospital used the technology. After CMS reviews your data, they will provide feedback on your performance and inform you as to whether you are eligible for a MIPS payment adjustment.
What are “Advanced Alternative Payment Models?” (“APM”)
Advanced APMs are models that establish the requirements for health care providers and hospitals must meet in order to qualify as an advanced APM. Depending on whether an Advanced APM fits your practice area and the patient population will determine wish payment model you join and which requirements you will have to adhere to. If you participate in Advanced APM’s, then you may earn a 5% incentive payment.
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Free Confidential Case ReviewWhat Are Electronic Health Records?
Electronic health records must meet the standards and requirements set forth by the Health Information Technology for Economic and Clinical Health Care Act (“HITECH”). These standards include:- Meaningful use adoption;
- Electronic health record security; and
- Data management capabilities between multiple doctors, hospitals, and laboratories.
Electronic health records (“EHR”) are basically a digital version of a patient’s health records. The distinction between the paper records and EHR or ePHI records is that electronic records allow doctors and hospitals an opportunity to implement added security to a patient’s records.
What Information Does a Patient’s Electronic Health Record Contain?
Specifically, electronic health records may consist of a patient’s:- Allergies
- Medical history
- Diagnoses
- Medications
- Treatment plan
- Immunization dates
- X-rays
- Lab results
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Free Confidential Case ReviewWhat’s the Difference Between EMRs, EHRs, PHRs, and ePHIs?
Description | Benefits |
Electronic Medical Records (“EMRs”) – EMRs are simply digital versions of a patient’s health records and treatment history by one provider. An EMR includes charts, notes, and information collected by that particular patient’s singular health care provider. | EMRs were simply an upgrade to traditional paper charts. EMRs allow providers to track data over time and identify which patients may benefit from preventive visits and screenings. |
Electronic Health Records (“EHRs”) – EHRs are more comprehensive than EMRs because they contain information from multiple providers. EHRs are also digital versions of a patient’s health records, but they differ from EMRs because they are meant to be shared between multiple health care providers. | Comprehensive and current client information. Improved sharing of information between multiple providers. Faster and more accurate prescribing of medications. Reducing redundant or duplicate testing. |
Personal Health Records (“PHR”) – PHRs also contain information from multiple health care providers. While EMRs and EHRs are medical records that are managed and maintained by practitioners, PHRs are managed and maintained by the patients themselves. | Patients are able to personalize the maintenance of their own medical records. Facilitates communication between provider and clients. |
Electronic Protected Health Information (“ePHI”) – ePHIs refer to any patient medical or treatment information that is protected under the Health Insurance Portability and Accountability Act of 1966 (“HIPAA”). | HIPAA established privacy protections for electronic protected health information and patient data. When handling this data, providers must abide by the HIPAA Security Rule guidelines. HITECH provides individuals with a right to obtain their ePHI in an electronic format. After receiving a request for this information, a provider may only charge a fee equal to the labor cost involved in production. |
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Free Confidential Case ReviewPatient Privacy Rights Under HITECH
HITECH expanded the scope of patient privacy rights and increased the potential for liability if anyone who violated those rights. The protections set forth in the act lead to strict enforcement of compliance regulations. The HITECH Act requires mandatory penalties for “willfully neglecting” ePHI data.
How Does HITECH Define "Willful Neglect?"
Generally, the meaning of “willful neglect” is determined on a case-by-case basis. However, most cases of willful neglect simply involve entities that do not have the necessary Privacy and Security documentation to present to agencies during an investigation.
Penalties for “willful neglect” may include fines of up to $250,000 and can extend up to $1.5 million dollars for repeat violations.
Can I Be Charged With "Willful Neglect" For Someone Else's Mistake?
If you share a patient’s electronic health records with a “business associate,” and that associate fails to comply with the safeguards contained in the HIPAA Security Rule, you may subject you to liability for “willful neglect” of those records.
According to the HITECH Act, “business associates” are also required to comply with the safeguards contained in the HIPAA Security Rule. Basically, you and whoever you are sending the information to have a joint responsibility to protect the records.
Before sharing patients electronic protected health information, you are supposed to get assurances from the people or entities you are sending this information to. If you do not get assurances that the individual will protect the data, then you may be liable for “willful neglect.”
What are The Guidlines for Releasing Patient Information?
The guidelines for the release of a patient’s electronic health record data are set forth in the HIPAA Security (for protected electronic data) and Privacy Rules (for protected patient data). These rules outline what information requires authorization from the patient prior to the release of that information.
Click the links to learn more about the “HIPAA Privacy Rule” and the “HIPAA Security Rule.”
What Happens if a Patient's ePHI is Breached?
If a breach of a patient’s electronic protected health information occurs, HIPAA requires that:
- Patients be notified of any breach;
- HHS be notified of any breach that affects 500 patients or more;
- Local media be notified of any breach that affects 500 patients or more; and that
- State Privacy Officer be notified of any breach that affects 500 patients or more.
Penalties for Breaching a Patients Privacy Rights
New penalties for violating the HITCH Act became effective on November 30, 2009. These penalties were put in place to ensure the privacy and security of a patient’s health information and force health care providers to comply with HIPAA to ensure that all violations are quickly corrected.
Prior to the HITECH Act:
- Penalties for each violation of a patient’s privacy could only land you $100 fine for each violation, or up to $250,000 for all similar violations of the same provision.
- A health care provider could bar or prevent the imposition of a civil penalty by demonstrating that it did not know it violated the Act.
After the HITECH Act:
- A provider may face up to $250,000 for each violation or up to a maximum penalty of $1.5 million dollars for repeat and uncorrected violations of the security provisions regarding electronic submission of health information.
- A health care provider can no longer bar the imposition of a civil penalty.
- Now, the only way to prevent the imposition of a penalty is by correcting the violation within 30-days of discovery.
- A provider would not be able to prevent the imposition of a penalty if the violation was due to the willful negligence of the defendant.
Seven (7) Advantages of EHRs
Electronic health records:
- Promote streamlined coding and billing;
- Enhance the privacy and security of patient data by only allowing access to authorized users;
- Improve communication between health care providers and their patients;
- Make it easier to transfer patients records in real-time, so doctors and hospitals have access to accurate and up-to-date information about the patient;
- Allow multiple health care providers of the same patient to coordinate more effectively and efficiently;
- Help doctors deliver accurate diagnosis, reduce medical errors, and provide safer care; and
- Reduces the cost of health care by reducing paperwork and redundant testing.