WSR 11-09-053



(Medicaid Purchasing Administration)

[ Filed April 18, 2011, 2:09 p.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 11-03-076.

     Title of Rule and Other Identifying Information: WAC 388-502-0025 Electronic health records (EHR) incentive program.

     Hearing Location(s): Office Building 2, Auditorium, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at or by calling (360) 664-6094), on May 24, 2011, at 10:00 a.m.

     Date of Intended Adoption: Not sooner than May 25, 2011.

     Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 1115 Washington Street S.E., Olympia, WA 98504, e-mail, fax (360) 664-6185, by 5 p.m. on May 24, 2011.

     Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by April 26, 2011, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department has opted-in to the new EHR incentive program. Rules are needed to administer this new federal program.

     Reasons Supporting Proposal: These rules will:

     •     Directly benefit medicaid providers by:

          -     Establishing an orderly procedure for addressing disagreements over issues of eligibility and meaningful use.

          -     Facilitating the orderly issuance of millions of dollars in incentive money to those in the provider community who are eligible and demonstrate meaningful use.

     •     Provide the department with an effective tool for encouraging discussion, engaging with providers, and managing risk.

     •     Reduce the number of disputes and appeals that go to superior court.

     Statutory Authority for Adoption: RCW 74.08.090.

     Statute Being Implemented: American Recovery and Reinvestment Act (ARRA) of 2009 (§ 495.370 and § 447.253(e)).

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Department of social and health services, medicaid purchasing administration, governmental.

     Name of Agency Personnel Responsible for Drafting: Jason R. P. Crabbe, P.O. Box 45504, Olympia, WA 98504-5504, (360) 725-1346; Implementation and Enforcement: Martin Thies, PhD., C.I.A., P.O. Box 45528, Olympia, WA 98504-5528, (360) 725-1150.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The department has analyzed the proposed rule amendments and concludes that they will impose no new costs on small businesses. The preparation of a comprehensive small business economic impact statement therefore is not required.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Martin Thies, PhD., C.I.A., Health IT Program Integrity Manager, Department of Social and Health Services, EHR Incentive Program, P.O. Box 45528, e-mail

March 31, 2011

Katherine I. Vasquez

Rules Coordinator

WAC 388-502-0025   Electronic health records (EHR) incentive program.   The purpose of this section is to establish the medicaid electronic health records (EHR) incentive program in accordance with the American Recovery and Reinvestment Act of 2009 (ARRA). The medicaid EHR incentive program promotes the adoption and meaningful use of certified EHR technology by offering financial incentives to eligible professionals and hospitals. This program is administered by the department.

     (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) When the subject of a dispute is an identified overpayment, a provider may appeal:

     (a) As authorized by RCW 43.20B.675; and

     (b) According to the process outlined in WAC 388-502-0230(3).

     (6) When the subject of a dispute does not involve an overpayment, a provider may dispute the decision according to the process outlined in WAC 388-502-0050.


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