HITECH Act Executive Action Plan 2009

1. HITECH ActExecutive Action Plan 2009 David G. Schoolcraft Ogden Murphy Wallace, PLLCdschoolcraft@omwlaw.com

2. Presentation Overview • Part I – Federal Incentive Payments for Health IT • Up to $36.5Billion in federal stimulus funding • Unprecedented opportunity to advance “Health IT” • Complex payment methodologies and some open issues • Part II – Significant Changes to HIPAA • Data Breach Notification Rules • Business Associate Agreements • Penalties & Enforcement • Accounting of Disclosures • Part III – Action Plan for 2009

4. Scope of Available Funding • Eligible Hospitals • Medicare • PPS factors: discharges, “Medicare Share” • CAH factors: costs w/o depreciation, “Medicare Share” • Medicaid • 10% of hospital’s “patient volume” (to be defined) • No difference in payment methodology for PPS and CAH • Eligible Physicians (Medicare or Medicaid) • HIE Planning and Development Grants • EHR Adoption Loan Program

5. Washington Grace Hospital = 25 beds, Critical Access Hospital 2 Employed Physicians – Medicare ($44,000) The Whole Picture Estimates based on certain factual assumptions. Subject to revision under final HHS regulations.

6. Washington Grace Hospital = 80 beds 4 Employed Physicians – Medicare ($44,000) The Whole Picture Estimates based on certain factual assumptions. Subject to revision under final HHS regulations.

7. Key Terms for Medicare/Medicaid Incentives for Adoption and “Meaningful Use”of “Certified EHR Technology”

8. “Meaningful Use” • Demonstrate to the “satisfaction of the Secretary” use of certified EHR in a meaningful manner • Certified EHR technology must be connected to provide for the electronic exchange of health information to improve the quality of care • Hospitals to submit information on clinical quality and other measures as selected by the Secretary • More stringent measures over time

9. “Certified EHR Technology” • “Certified EHR technology” is a qualified electronic health record meeting standards to be defined • Office of the National Coordinator for Health Information Technology (“ONC”) to develop certification program • Certification Commission for Healthcare Information Technology (“CCHIT”) may be involved along with the National Institute of Standards and Technology (“NIST”) • December 31, 2009 deadline for initial standards, implementation specs and certification criteria

10. Medicare Incentive Payments • Fiscal year 2011-2015 (Oct. 2010) • Phased Transition Schedule After 2013 • HHS will determine how hospitals shall demonstrate meaningful use (attestation, survey, etc.) • Amount ($2 MM + $200 (Discharges 1,150th - 23,000th)) * Medicare Share * Transition Factor • Medicare Share = Medicare portion of inpatient days adjusted upward for charity care. • Transition Factor - Reduction by 25% per year for 4 years

11. Medicare Incentive/Penalty Timeline • Medicare incentives are paid on a transition schedule. • After FY 2015, if a hospital is not a meaningful EHR user then penalties begin

12. Medicare Incentive Payments • Washington Grace Hospital – 80 beds Medicare Share 65% Total $4,075,990 *Estimate based upon existing statute in advance of HHS rule making.

13. Medicare Incentive PaymentsCritical Access Hospitals Calculation • If a meaningful EHR user by 2015, CAH may expense certain EHR costs in one year for cost reporting purposes (non-depreciated basis) and certain costs from prior periods • Calculation uses Medicare Share amount + 20% • Equation: 101% * Reasonable Cost of EHR System * (Medicare Share + 20%) • If CAH is not a meaningful user by 2015 or thereafter, percentage reimbursement will be reduced to 100.66% in 2015, 100.33% in 2016 and 100% in 2017

14. Washington Grace CAH – 25 beds Medicare Incentive Payments Critical Access Hospitals Medicare Share 75% + 20% = 95% (20% increase for CAH) Assumes costs remain the same over all four years Total $1,348,242 *Estimate based upon existing statute in advance of HHS rule making.

15. Critical Access Hospital Penalties • CAH’s who have not implemented EHR’s by 2015 may be subject to reductions

16. Medicaid Incentive Payments • 10% of “Patient Volume” on Medical Assistance • To be defined by Secretary of HHS • Inpatient vs. outpatient volumes • States allocate the money • Year 1 – Demonstrate efforts to adopt, implement or upgrade EHR system • Years 2-6 – Demonstrate “meaningful use”

17. Medicaid Incentive Payments Critical Access Hospital • Washington Grace CAH – 25 beds Medicaid Share 10% Total $458,109

18. Medicare Incentive Payments forPhysicians • Physician incentive payments are 75% of Medicare allowed charges • Penalties – reduction in physician fee schedule • 10% increase in incentives if physician practices in a designated health professional shortage area

19. Medicare Incentive Payments forPhysicians • Hospitals may be able to collect incentive payments for certain employed physicians, but note that “hospital-based” physicians are excluded

20. Part IIHIPAA New Compliance Obligations and More Regulations to Come

21. Timeline of HIPAA Requirements

22. Breach Notification • Requires that covered entities notify patients of any unauthorized acquisition, access, use, or disclosure of “unsecured” PHI • Date of discovery – first day breach was known or should have been known • Notice within 60 days of discovery • If+500, then notice to media and HHS

23. Breach NotificationKey Issue: Is data “unsecured”? • Recent HHS Guidance • Reference to NIST Publication 800-100 • Internal review and risk analysis • Data encryption technologies

24. Business Associates • Currently – Business Associates not directly regulated by HIPAA • Application of HIPAA Security Requirements • Administrative Safeguards • Physician Safeguards • Technical Safeguards • Documentation Requirements • Requirement to notify Hospital if there is a breach • Open question regarding mandatory revisions to Business Associate Agreements

25. Enforcement • Expansion of criminal and civil penalties • Tiered penalties tied to violator’s level of intent • Periodic audits by HHS • Victims may receive percentage of civil penalties • State Attorney General may bring an action provided an action by HHS is not pending

26. Accounting of Disclosures • Eliminates existing exception limiting accounting for disclosures other than treatment, payment and health care operations • Will require significant operational changes, but may be aided by improved IT systems • Staggered effective dates:

27. Part IIIAction Plan for 2009

28. 1. Incentive Payment Analysis • Prepare estimate of health IT incentive funds available for your facility • Analyze Medicare and Medicaid incentive payments for hospitals (PPS/CAH) and eligible physicians • Monitor HHS, ONC, CCHIT, NIST for development of standards for “certified EHRs” and “meaningful use”

29. 2. Data Breach Prevention • Develop data breach prevention and response plan • Assess data security in light of new federal standards • Implement additional data security measures deemed necessary and appropriate following risk analysis • Develop reporting and communications plan in conjunction with IT service providers: • Internal reporting and incident review • Required external communications (patients, media, government) • Methods to address follow up inquiries from patients and/or media

30. 3. Technology Transaction Review • Careful review of information technology transactions– from due diligence during system selection through contracting • Ensure that all information technology transactions are HITECH-Ready • Vendor/service provider commitments regarding data security and accounting of disclosure requirements • Updated Business Associate Agreement • Functionality necessary to obtain or maintain “certified EHR” status and to facilitate “meaningful use”

31. Questions? David G. Schoolcraft dschoolcraft@omwlaw.com 206.447.7211