Effective Date of Rule: Thirty-one days after filing.

     Purpose: The department opted-in to the new electronic health records (EHR) incentive program. Rules are needed to administer this new federal program.

     Statutory Authority for Adoption: RCW 74.08.090.

      Adopted under notice filed as WSR 11-09-053 on April 18, 2011.

     Changes Other than Editing from Proposed to Adopted Version: In subsection (5), the department replaced the three options for appealing an identified overpayment with one option for appealing any disputed matter; that option refers to the Administrative Procedure Act, chapter 34.05 RCW.

     A final cost-benefit analysis is available by contacting Martin Thies, Ph.D., C.I.A., Health IT Program Integrity Manager, DSHS, EHR Incentive Program, P.O. Box 45528, phone (360) 725-1150, e-mail thiesmj@dshs.wa.gov.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 1, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 1, Amended 0, Repealed 0.

     Date Adopted: June 2, 2011.

Susan N. Dreyfus

Secretary

     (1) The department provides incentive payments to eligible providers and hospitals that adopt and meaningfully use certified EHR technology in accordance with the provisions of 42 CFR Parts 412, 413, 422, and any other federal regulations that apply.

     (2) Providers and hospitals eligible to participate in EHR incentive program are identified in 42 CFR Part 495.304 and other applicable rules.

     (3) As authorized by 42 CFR Parts 412, 413, 422, chapters 43.20B and 74.09 RCW, and any other federal or state rules that apply, the department monitors and reviews all providers and hospitals participating in the EHR incentive program. By the same authority, the department reviews all practices, documentation, and/or data related to EHR technology to determine whether professionals and hospitals participating in the EHR incentive program are eligible and complying with state and federal rules and regulations.

     (4) The department may determine that a participating professional or hospital has not met the eligibility or performance requirements to receive an EHR incentive payment, or should receive an incentive payment in an amount less than the amount anticipated by the provider or hospital. Areas of possible dispute in the EHR incentive program include, at a minimum, any of the following:

     (a) Patient volume thresholds and calculations, as outlined in 42 CFR Part 495.304 and 495.306.

     (b) Eligibility criteria and payment limitations, as outlined in 42 CFR Part 495.10, 495.304, 495.306, and 495.310.

     (c) Attestations and compliance demonstrations including, at a minimum:

     (i) Attestations that certified EHR technology has been adopted, implemented, or upgraded; and

     (ii) Demonstrations of meaningful use, as outlined in 42 CFR Part 495.6, 495.8, 495.306, 495.310, and in any future published federal regulations and requirements, as applicable.

     (d) The payment process and incentive payment amounts, as outlined in 42 CFR Part 495.310, 495.312, and 495.314.

     (e) Additional issues regarding EHR incentive program eligibility, participation, documentation, and compliance as outlined in 42 CFR Parts 412, 413, 422 et. al. and in any future published federal regulations and requirements, as applicable.

     (5) All matters of dispute are subject to the administrative procedure act (APA) appeal process per chapter 34.05 RCW. A provider who disagrees with a department action under this section may request a hearing. The hearing request must:

     (a) Be in writing;

     (b) Be received by the agency, at the address identified in the notice of action, within twenty-eight days of the date of the notice of action by certified mail (return receipt); and

     (c) State the reason(s) why the provider thinks the action is incorrect.

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