Interesting HITECH Act Scenario

Today I was talking with someone about the way the HITECH act works and I thought about an interesting scenario.

Let’s say that a clinic decides to implement one of the “certified EHR” in their practice. Everything goes well and they implement without any problems. The clinic spent a large sum of money to implement an overpriced certified EHR, but felt good because it would be offset by the $44k (approximately) that they’d receive from the HITECH act.

Let’s say it comes time for the practice to prove “meaningful use” in order to receive their reimbursement. Unfortunately, something about the way they are documenting in the EHR excludes them from being able to show “meaningful use” (hard to give a specific example until we know what that means) and therefore excludes them from getting any of the hoped for $44k of reimbursement money.

Would be a horrible situation, no? I’m not sure about this next part (so correct me if I’m wrong), but think about this. Now the clinic has spent a large sum of money on an EHR, isn’t eligible for the hoped for $44k, and now are going to incur a 1-5% penalty for not having an EHR that shows “meaningful use.” Maybe I’m wrong, but I don’t remember hearing about an exception to the penalty if you tried to show “meaningful use” and failed. Talk about adding insult to injury.

Imagine if one of the “certified EHR” ends up learning that no one who selected that certified EHR will be eligible for the reimbursement, because the way the certified EHR was designed doesn’t meet the “meaningful use” criteria.

I hope that none of these happens, but I know if I was a doctor of practice manager looking at the HITECH act money I’d be worried that something will go wrong and I’ll have spent a lot of money and be stuck with no reimbursement.

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John Lynn

John Lynn

John Lynn is the Founder of, a network of leading Healthcare IT resources. The flagship blog, Healthcare IT Today, contains over 13,000 articles with over half of the articles written by John. These EMR and Healthcare IT related articles have been viewed over 20 million times.

John manages Healthcare IT Central, the leading career Health IT job board. He also organizes the first of its kind conference and community focused on healthcare marketing, Healthcare and IT Marketing Conference, and a healthcare IT conference,, focused on practical healthcare IT innovation. John is an advisor to multiple healthcare IT companies. John is highly involved in social media, and in addition to his blogs can be found on Twitter: @techguy.


  • One would hope that any physician that signs a contract with an EMR vendor would include a phrase that requires the vendor’s product to have (and maintain) “meaningful use” functionality throughout the incentive period. As far as the physician’s failure to not use the EMR in a way that can be doucmented as “meaningful use” that is really no different than not being able to receive third party reimbursement because adequate documentation was not generated.

  • The other thing that worries me is that if they handle it like the PQRI incentives, there’s no feedback loop.

    An office does what they think is the right thing through out all of 2008, then in mid-2009 they either do or don’t get a check based on whether the government things they qualified. If they don’t get the incentive there’s no way to know why not and even if they did there’s no way to fix and still get paid for 2009 because it’s already half way through the year. PQRI incentives were small compared to the HITECH incentives so it wasn’t such a big deal. But not getting the $44K when you were counting on it is a much bigger deal.

  • Jim,
    That’s a good point and part of the reason that I wrote this post. Doctors should make sure that clause is part of the contract they sign with an EHR vendor. However, I still wouldn’t want to be the doctor who tries to recover that contractual obligation. In the end it would probably be more work to recover the money than it’s worth. Sad, but true.

    The big difference between being able to receive third party reimbursement and being able to receive the stimulus is third party reimbursement is in the hundreds of dollars while the stimulus is in the thousands of dollars. In Vegas we call that a High Stakes game.

  • Scott,
    Thanks for the information on the non-feedback loop. I figured something like this would be the case, but had nothing to back up the idea. This is the worst feeling ever. I’ve had a few things I’ve done happen where I didn’t get feedback on why I was not eligible and it just eats away at you.

    The inability to refile is killer, but makes sense. You can’t retroactively go back and change how you used an EHR. However, it is certainly a big deal to lose out on a year’s worth of stimulus. Regardless of whether it’s your fault or the EHR vendors. Most people that get in this situation will have used it in good faith and just weren’t well informed on the requirements.

  • The problem is not just losing out on an year’s worth of incentive, it’s very possible that you could lose out completely and never know why.

    Again I’m basing this on the PQRI incentive process. I’ve talked to offices that have never received a PQRI payment and they have no idea why not and they’ve never found a means to find out why not.

    The long delay in payments just makes it worse. By the time you’ve have/haven’t received the previous years’ payments (around June/July as I recall) it’s way too late to correct any issues for the current year because you must report correctly on a minimum percentage of eligible patients claims. By the time any feedback arrived, you’re already past the date at which you could still qualify for the current year.

    As for an EHR vendor putting something in a contract, they might put some general phrasing in that they’ll follow best practices, but there’s no way they can guarantee a particular office will qualify (and get paid) for the incentives without some sort of feedback from the government. It’s going to be a crap shoot on doctors getting paid and I can’t see any vendor that’s going to want to take on that risk on behalf of the customers.

  • Scott,
    Good points.

    No EHR vendor will commit to getting you the EHR Stimulus money (although many will think they are). What they will commit to and be willing to put in a contract is that they’ll be a “certified EHR.” This is easy enough for many EHR vendors. Although, I’m sure even this will cause some doctors trouble since an EHR vendor will require the latest version of their software to be a “certified EHR” and many doctors won’t have updated to the latest version.

    You’re right that no EHR vendor should and would take on the liability of ensuring that a doctor will show meaningful use. Too many factors involved that are out of the EHR vendor’s control.

  • John and Others,

    I have been doing some research in this area, and I’m assuming a lot has been clarified since your original posting, but thought I would add some points to consider.

    1) Reimbursements to physicians are not a one lump sum payment. The payment horizon starts in 2011 through 2016. HCPs loose out on EHR incentive payments that for certified systems that achieve “meaningful use” if they do not have them implemented (and proven “meaningful) by 2015. So, to build off your scenario, in the unlikely event that an initial installation of an EHR was somehow not deemed “meaningful,” there is time to prove that it is “meaningful” and still get reimbursed.

    2) The requirements for “meaningful use” are in three broad areas, and understanding those requirements should help the decision making processes significantly easier: 1) “Certified EHR” system with e-prescribing capability. Any EHR manufacturer that wants to have any future in this space either has this functionality or will have it shortly. 2) The EHR system is able to exchange PHI (personal health information) – same note as before, you can bet that any EHR system is driving to have that capability. 3) This is the component that is still being developed – but this is the reporting of “meaningful use” – specific statistics about the patient population within the EHR. In theory, this should be a reporting exercise. It will dictate the information HCPs need to input into the system, but the current draft of the requirements appear to be straight forward.

    The bottom line is that 1) there is some time to implement before losing out on incentives (despite what EHR vendors may be saying in their marketing), 2) vendors are on the hook for delivering a lot of this functionality, and 3) the rest is up to making sure HCPs are sufficiently informed and trained to provide the inputs needed so the reporting on “meaningful use” is accurate.

  • Many of the issues around the incentives will not be known until CMS publishes their regulations. It has not been finalized if ALL meaningful use components must be met to receive the incentives. CMS could say if 75% of the criteria are met that is good enough for 2011. We just don’t know and will not know until CMS issues their regulations.

  • It was fun to go back and read what I wrote back in April. That feels like a world away. No doubt we know infinitely more about the EMR stimulus money now. Although, there are still a lot of unknowns until as Jim Tate said, CMS publishes the final regulations.

    That said, the fear is still real that many will miss out on part of the EMR stimulus money based upon some “catch” in the system. Since it’s paid out over the 5 years it is less of a concern.

    More importantly, it will be interesting to see if the $44k is worth the effort to obtain. Still need more time to know that answer.

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