Federal Register, Volume 75 Issue 144 (Wednesday, July 28, 2010)

[Federal Register Volume 75, Number 144 (Wednesday, July 28, 2010)]
[Rules and Regulations]
[Pages 44590-44654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17210]

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Part III

Department of Health and Human Services

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45 CFR Part 170

Health Information Technology: Initial Set of Standards, Implementation
Specifications, and Certification Criteria for Electronic Health Record
Technology; Final Rule

Federal Register / Vol. 75 , No. 144 / Wednesday, July 28, 2010 /
Rules and Regulations

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of the Secretary

45 CFR Part 170

RIN 0991-AB58

Health Information Technology: Initial Set of Standards,
Implementation Specifications, and Certification Criteria for
Electronic Health Record Technology

AGENCY: Office of the National Coordinator for Health Information
Technology (ONC), Department of Health and Human Services.

ACTION: Final rule.

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SUMMARY: The Department of Health and Human Services (HHS) is issuing
this final rule to complete the adoption of an initial set of
standards, implementation specifications, and certification criteria,
and to more closely align such standards, implementation
specifications, and certification criteria with final meaningful use
Stage 1 objectives and measures. Adopted certification criteria
establish the required capabilities and specify the related standards
and implementation specifications that certified electronic health
record (EHR) technology will need to include to, at a minimum, support
the achievement of meaningful use Stage 1 by eligible professionals,
eligible hospitals, and/or critical access hospitals (hereafter,
references to ``eligible hospitals'' in this final rule shall mean
``eligible hospitals and/or critical access hospitals'') under the
Medicare and Medicaid EHR Incentive Programs. Complete EHRs and EHR
Modules will be tested and certified according to adopted certification
criteria to ensure that they have properly implemented adopted
standards and implementation specifications and otherwise comply with
the adopted certification criteria.

DATES: Effective Date: This final rule is effective August 27, 2010.
The incorporation by reference of certain publications listed in the
rule is approved by the Director of the Federal Register as of August
27, 2010.

FOR FURTHER INFORMATION CONTACT: Steven Posnack, Director, Federal
Policy Division, Office of Policy and Planning, Office of the National
Coordinator for Health Information Technology, 202-690-7151.

SUPPLEMENTARY INFORMATION:

Acronyms

ANSI American National Standards Institute
CAH Critical Access Hospital
CCD Continuity of Care Document
CCHIT Certification Commission for Health Information Technology
CCR Continuity of Care Record
CDA Clinical Document Architecture
CDC Centers for Disease Control and Prevention
CFR Code of Federal Regulations
CGD Certification Guidance Document
CMS Centers for Medicare & Medicaid Services
CPOE Computerized Provider Order Entry
EHR Electronic Health Record
FIPS Federal Information Processing Standards
HHS Department of Health and Human Services
HIPAA Health Insurance Portability and Accountability Act of 1996
HIT Health Information Technology
HITECH Health Information Technology for Economic and Clinical
Health
HITSP Healthcare Information Technology Standards Panel
HL7 Health Level Seven
ICD International Classification of Diseases
ICD-9-CM International Classification of Diseases, 9th Revision,
Clinical Modification
ICD-10-PCS International Classification of Diseases, 10th Revision,
Procedure Coding System
ICD-10-CM International Classification of Diseases, 10th Revision,
Clinical Modification
IHS Indian Health Service
LOINC Logical Observation Identifiers Names and Codes
NCPDP National Council for Prescription Drug Programs
NLM National Library of Medicine
OCR Office for Civil Rights
OMB Office of Management and Budget
ONC Office of the National Coordinator for Health Information
Technology
PHSA Public Health Service Act
PQRI Physician Quality Reporting Initiative
REST Representational state transfer
RFA Regulatory Flexibility Act
SNOMED-CT Systematized Nomenclature of Medicine Clinical Terms
SOAP Simple Object Access Protocol
UCUM Unified Code for Units of Measure
UMLS Unified Medical Language System
XML eXtensible Markup Language

Table of Contents

I. Background
A. Legislative History
B. Regulatory History
1. Initial Set of Standards, Implementation Specifications, and
Certification Criteria for EHR Technology Interim Final Rule
2. Interdependencies With Other HITECH Provisions and
Relationship to Other Regulatory Requirements
II. Overview of the Final Rule
III. Section-by-Section Discussion of the Final Rule and Response to
Comments
A. Introduction
B. General Comments
C. Definitions--Sec. 170.102
1. Definition of Disclosure
2. Definition of Standard
3. Definition of Implementation Specification
4. Definition of Certification Criteria
5. Definition of Qualified EHR
6. Definition of Complete EHR
7. Definition of EHR Module
8. Definition of Certified EHR Technology
9. Definition of Human Readable Format
10. Definition of User
D. Final Rule Amendments to Adopted Standards, Implementation
Specifications, and Certification Criteria Sec. Sec. 170.202,
170.205, 170.207, 170.210, 170.302, 170.304, 170.306
1. Flexibility and Innovation
2. Transport Standards
3. Certification Criteria and Associated Standards and
Implementation Specifications
a. General Certification for Complete EHRs or EHR Modules--Sec.
170.302
b. Specific Certification for Complete EHRs or EHR Modules
Designed for an Ambulatory Setting--Sec. 170.304
c. Specific Certification for Complete EHRs or EHR Modules
Designed for an Inpatient Setting--Sec. 170.306
d. Adoption and Realignment of Certification Criteria to Support
the Final Requirements for Meaningful Use Stage 1.
E. Additional Comments
F. Comments Beyond the Scope of This Final Rule
IV. Collection of Information Requirements
V. Regulatory Impact Analysis
A. Introduction
B. Why is this rule needed?
C. Executive Order 12866--Regulatory Planning and Review
Analysis
1. Comment and Response
2. Executive Order 12866 Final Analysis
a. Costs
b. Benefits
D. Regulatory Flexibility Act Analysis
1. Comment and Response
2. Final RFA Analysis
E. Executive Order 13132--Federalism Regulation Text

I. Background

A. Legislative History

The Health Information Technology for Economic and Clinical Health
(HITECH) Act, Title XIII of Division A and Title IV of Division B of
the American Recovery and Reinvestment Act of 2009 (ARRA) (Pub. L. 111-
5), was enacted on February 17, 2009. The HITECH Act amended the Public
Health Service Act (PHSA) and established ``Title XXX--Health
Information Technology and Quality'' to improve health care quality,
safety, and efficiency through the promotion of health information
technology (HIT) and the electronic exchange of health information.
Section 3004(b)(1) of the PHSA requires the Secretary of Health and
Human Services (the Secretary) to adopt an initial set of standards,
implementation specifications, and certification criteria by December
31, 2009 to enhance the interoperability, functionality, utility, and
security of

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health information technology. Section 3004(b)(1) of the PHSA also
permits the Secretary to adopt the initial set of standards,
implementation specifications, and certification criteria on an
interim, final basis.

B. Regulatory History

1. Initial Set of Standards, Implementation Specifications, and
Certification Criteria for EHR Technology Interim Final Rule
On December 30, 2009, the Federal Register made available for
public inspection, an interim final rule (the Interim Final Rule) with
a request for comments, which adopted an initial set of standards,
implementation specifications, and certification criteria. As noted in
this rulemaking (75 FR 2014), we described how Congress fundamentally
tied the adopted standards, implementation specifications, and
certification criteria to the incentives available under the Medicare
and Medicaid EHR Incentive Programs by requiring the meaningful use of
Certified EHR Technology. Congress outlined several goals for
meaningful use, one of which included the ``use of certified EHR
technology in a meaningful manner.'' This means that to qualify for
incentives, an eligible professional or eligible hospital must both
adopt Certified EHR Technology and demonstrate meaningful use of this
technology.
The initial set of standards, implementation specifications, and
certification criteria adopted in the Interim Final Rule established
the capabilities that Certified EHR Technology would need to include
to, at a minimum, support eligible professionals' and eligible
hospitals' efforts to achieve what had been proposed for meaningful use
Stage 1 under the Medicare and Medicaid EHR Incentive Programs proposed
rule.
2. Interdependencies With Other HITECH Provisions and Relationship to
Other Regulatory Requirements
In addition to our discussion of how the standards, implementation
specifications, and certification criteria adopted in the Interim Final
Rule correlated with the Medicare and Medicaid EHR Incentive Programs
proposed rule, we also discussed our approach to align adopted
standards, implementation specifications, and certification criteria
with new and pending HITECH Act regulatory actions and with other
already established regulatory requirements. We also explained our
approach for aligning these standards, implementation specifications,
and certification criteria with: the adopted standard and certification
criterion related to the Health Insurance Portability and
Accountability Act of 1996 (HIPAA) Privacy Rule Accounting of
Disclosures Regulation under the HITECH Act; alignment with the HIPAA
Privacy and Security Regulations; the Medicare Part D Electronic
Prescribing Regulations; and the HIPAA Transactions and Code Sets
Standards Regulations.

II. Overview of the Final Rule

We are amending part 170 of title 45 of the Code of Federal
Regulations (CFR) to complete the adoption of the initial set of
standards, implementation specifications, and certification criteria as
required by section 3004(b)(1) of the PHSA and realign them with the
final objectives and measures established for meaningful use Stage 1.
After reviewing and considering public comments on our adopted
standards, implementation specifications, and certification criteria,
we have made several revisions to support the final meaningful use
objectives and measures, clarify certain certification criteria to
resolve identified technical challenges related to some of the
standards and implementation specifications we adopted, and to provide
for additional flexibility.

III. Section-by-Section Discussion of the Final Rule and Response to
Comments

A. Introduction

This section summarizes the nearly 400 timely comments received by
ONC related to the Interim Final Rule. In some cases, due to the
simultaneous publication and topical similarity of the notice of
proposed rulemaking for meaningful use Stage 1, commenters
inadvertently submitted comments to our regulation docket on
regulations.gov instead of the Centers for Medicare & Medicaid Services
(CMS) regulation docket, and vice versa. Recognizing this oversight,
CMS and ONC shared misplaced comments between the offices and we
included within our review all comments that could be reasonably
identified as comments on the Interim Final Rule.
We have organized the preamble of this final rule along the
following lines. First, we respond to general comments, including those
related to the scope and applicability of the final rule that we
believe are necessary to clarify upfront. Next, we respond to comments
regarding the definitions of certain defined terms. We then respond to
public comments on each certification criterion, and where an adopted
certification criterion also references standards and implementation
specifications, we include our response to public comments on the
related standards and implementation specifications. These concepts
were separately discussed in the Interim Final Rule and we believe that
discussing the certification criteria together with associated
standards and implementation specifications will improve the clarity of
the final rule and will allow us to more fully address public comments
in a broader context. We include the following table at the beginning
of the discussion of each certification criterion section to illustrate
the final meaningful use Stage 1 objectives for eligible professionals
and eligible hospitals and to show how we have revised adopted
certification criteria in response to the revised meaningful use
objectives and measures and public comments.

Finally, in considering public comments on the Interim Final Rule,
we analyzed whether we had structured the regulation text in an optimal
and understandable manner. For several provisions, we received comments
requesting additional clarification and we felt that the original
regulatory structure contributed to the commenters' confusion. Because
of those comments and in an effort to better structure the regulation
text for future revisions, we have revised the structure conceptually
to group content exchange standards and associated

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implementation specifications and vocabulary standards, and separated
them into different sections. In line with this ``conceptual''
restructuring, we have determined that specifying how a Complete EHR or
EHR Module must comply with an adopted standard should be solely
reflected in the certification criteria. As a result, several
certification criteria have been revised to more clearly reflect how a
Complete EHR or EHR Module must comply with adopted standards and,
where applicable, the relevant adopted implementation specifications.

B. General Comments

Some commenters appear to have misinterpreted or misunderstood the
scope of the Interim Final Rule and the applicability of the adopted
standards, implementation specifications, and certification criteria.
We would therefore like to clarify these concepts at the beginning of
this final rule and are providing the following responses to the
relevant comments.
Comments. Some commenters seem to have construed the adoption of
standards, implementation specifications, and certification criteria as
including requirements that apply to the health care providers that
will use the Certified EHR Technology, rather than as required
capabilities of the Certified EHR Technology itself. These commenters,
for instance, questioned whether entities using Certified EHR
Technology must comply with adopted standards and implementation
specifications when electronically using or transmitting health
information within or among components of the legal entity or
alternatively whether the standards apply solely to transmissions
between legal entities. Other commenters specifically requested
clarification regarding the adopted standards that are required to be
used internally within each provider's office, institution, or closed
system and which standards are required for purposes of electronically
exchanging health information among such entities. Some comments
implied that the Interim Final Rule should have specified when an
eligible professional or eligible hospital would be required to use
adopted standards. One commenter specifically requested that the
adopted standards apply only to the electronic exchange of health
information between legal entities.
Response. As stated in Sec. 170.101, we specify that ``[t]he
standards, implementation specifications, and certification criteria
adopted in this part apply to Complete EHRs and EHR Modules and the
testing and certification of such Complete EHRs and EHR Modules.'' In
Sec. Sec. 170.200 and 170.300, we further specify that ``[t]he
standards and implementation specifications adopted in this part apply
with respect to Complete EHRs and EHR Modules'' and that ``[t]he
certification criteria adopted in this subpart apply to the testing and
certification of Complete EHRs and EHR Modules.''
The purpose of this final rule, therefore, is to adopt standards,
implementation specifications, and certification criteria to test and
certify that a Complete EHR or EHR Module provides certain
capabilities, and where applicable, to require that those capabilities
be implemented in accordance with adopted standards and implementation
specifications. The adopted standards, implementation specifications,
and certification criteria were not intended to impose independent
requirements on the entities using Certified EHR Technology. Unlike
certain other regulatory requirements to which eligible professionals
or eligible hospitals may be subject, it is not within the intended
scope of this final rule to specify the requirements for entities using
Certified EHR Technology.
We understand the commenters' point though that an adopted standard
and implementation specification could apply equally to electronic
transactions between legal entities as well as to transmissions within
an entity. This final rule, however, is not intended to specify the
conditions under which adopted standards and implementation
specifications must be used, only that a Complete EHR or EHR Module, in
order to be certified, must include specified capabilities that are
implemented in accordance with those standards, implementation
specifications, and certification criteria. We anticipate that other
regulations, as well as the clinical and business needs of HIT users,
anticipated efficiencies and desired quality improvements, and
technical, architectural, and enterprise limitations will determine
when entities will utilize the capabilities required of Certified EHR
Technology. Additionally, we would note that Complete EHRs and EHR
Modules will, in many cases, be tested and certified independent of the
environment within which they will be implemented. Consequently,
specifying when an entity that implements Certified EHR Technology must
utilize a particular capability in its operating environment exceeds
the scope of this rule.
To further demonstrate this point, Certified EHR Technology
implemented by an eligible professional will need to possess the
capability to generate an electronic prescription according to one of
the standards we have adopted. To specify the contexts in which an
electronic prescription (generated according to the adopted standard)
must be transmitted would go beyond the scope of certification.
Moreover, it would raise a more serious and practical consideration.
Attempting to specify when entities must utilize the capabilities of
Certified EHR Technology would add an unnecessary level of complexity
to this rule and create the potential for conflicts with other
regulations promulgated by the HHS. For instance, HHS has already
promulgated at least two sets of regulations identifying when health
care providers need to use specific standards and the contexts in which
those standards must be used. Under the HIPAA Transactions and Code
Sets Standards regulations, HHS specifies at 45 CFR 162.923(a) that
``[e]xcept as otherwise provided in this part, if a covered entity
conducts with another covered entity (or within the same covered
entity), using electronic media, a transaction for which the Secretary
has adopted a standard under this part, the covered entity must conduct
the transaction as a standard transaction.'' (Emphasis added.)
Consequently, in the HIPAA context, covered entities must use adopted
transaction standards for covered transactions both within the covered
entities and with outside entities. The Medicare Part D electronic-
prescribing (e-prescribing) regulations implement a different approach
for certain e-prescribing transactions. Health care providers that
electronically prescribe Part D drugs for Part D eligible individuals
under 42 CFR 423.160(a)(3)(iii), ``may use either HL7 messages or the
NCPDP SCRIPT Standard to transmit prescriptions or prescription-related
information internally when the sender and the recipient are part of
the same legal entity. If an entity sends prescriptions outside the
entity (for example, from an HMO to a non-HMO pharmacy), it must use
the adopted NCPDP SCRIPT Standard or other applicable adopted
standards.'' Therefore, we believe that it is unnecessary and outside
of the intended scope of this rule to specify the contexts or
circumstances under which adopted standards and implementation
specifications must be utilized.
Moreover, we anticipate that future meaningful use objectives and
measures will specify, as necessary and appropriate, the conditions
under which certain health care providers will need

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to use adopted standards and implementation specifications. The
context, for instance, governing when a standard must be used will, in
some cases, be directly related to whether and how an eligible
professional or eligible hospital must meaningfully use Certified EHR
Technology. For example, a final meaningful use Stage 1 objective
requires that eligible professionals and eligible hospitals use
Certified EHR Technology to record demographics including, among other
fields, race and ethnicity. While we have adopted the race and
ethnicity codes published by the Office of Management and Budget (OMB),
in the context Medicare and Medicaid EHR incentive programs, the
meaningful use of Certified EHR Technology will dictate whether such
codes must be used ``inside'' an organization. Another example of when
a meaningful use objective establishes the context in which a standard
must be used is the objective that requires eligible professionals and
eligible hospitals to use Certified EHR Technology to maintain an up-
to-date problem list of current and active diagnoses. The measure
associated with this objective requires that entries be recorded in
``structured data'' and in this context we adopted ICD-9 or SNOMED-
CT[reg] to provide that structure. As a result, Certified EHR
Technology must be capable of using ICD-9 or SNOMED-CT[reg] when an
eligible professional or eligible hospital seeks to maintain an up-to-
date problem list.
In other instances, the Department does not specify explicitly in
regulation the context for certain meaningful use objectives and
whether meaningful use of Certified EHR Technology would require the
use of a standard for electronic transactions solely between two
different legal entities, or for all transactions, or for most
transactions with certain exemptions.
Comments. Several commenters requested that we provide more
information about the standards we expect the Secretary to adopt in
order to support future stages of meaningful use. These commenters
noted, along with referencing the timelines for making changes to HIT,
that it would benefit the HIT industry if we could provide a roadmap,
framework, or more descriptive ``glide path'' for future standards
adoption activities.
Response. We anticipate that future stages of meaningful use will
require us to adopt additional standards, implementation
specifications, and certification criteria. We also expect that
standards we have adopted will continue to be revised and updated over
time, to reflect current technology, changing medical practice and
regulatory requirements. We will therefore need to continue to
harmonize those adopted standards with other standards to support
interoperability. We anticipate that the standards required to support
future stages of meaningful use will need a framework that supports
harmonization across different meaningful use scenarios and that
supports early real world testing. We plan to work closely with the HIT
Standards Committee to develop a forward looking agenda and to make
known in advance the types of standards, implementation specifications,
and certification criteria on which we will seek recommendations from
the HIT Standards Committee. We believe this will benefit the HIT
industry by providing greater transparency of the standards adoption
activities and will serve as an early indication for the public of
candidate standards that are being identified for possible adoption.

C. Definitions--Sec. 170.102

In this section, we respond to public comment on the definitions
adopted in the Interim Final Rule. We address the definition of
Certified EHR Technology last after we provide clarifications related
to the definitions of Complete EHR and EHR Module.
1. Definition of Disclosure
Comments. A few commenters noted that the definition of disclosure
was too broad or asked that we refine the adopted definition to be more
limited and to only apply in certain circumstances. One commenter noted
that this was a new definition.
Response. As we explained in the preamble of the Interim Final
Rule, this definition repeated the text specified at 45 CFR 160.103
(the General Provisions section for the HIPAA regulations). Because the
Interim Final Rule created a new part in Title 45 of the CFR, the
definition of disclosure as it is used in the HIPAA regulations would
not necessarily have applied to our use of the term in this rule.
Therefore, to prevent unnecessary ambiguity for the regulated
community, we adopted the definition of the term as it is defined at 45
CFR 160.103.
In light of public comment and to prevent any future regulatory
inconsistency that would require rulemaking to correct, we have
revisited our approach of repeating the text of the definition of
disclosure from 45 CFR 160.103 and have decided to cross reference 45
CFR 160.103 in the definition of disclosure. The final definition will
read: disclosure is defined as it is in 45 CFR 160.103.
2. Definition of Standard
Comment. A commenter stated that our definition of standard was
comprehensive from a technical perspective, but believed the definition
was incomplete from a policy perspective. The commenter argued that for
interoperability to be successful, it was essential that standards be
created through collaborative, consensus-based processes that take into
consideration the needs and concerns of all interested stakeholders.
For that reason, the commenter suggested, in order for the definition
to be whole from both a technical and policy perspective, we should add
to the definition the phrase ``developed through the use of open,
collaborative, consensus-based processes.''
Response. While we appreciate the commenter's point, we believe
that the proposed language is unnecessary and potentially problematic.
Federal agencies are already required under the National Technology
Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 3701 et seq.)
and OMB Circular A-119 \1\ to use, wherever practical, technical
standards that are developed or adopted by voluntary consensus
standards bodies to carry out policy objectives or activities, with
certain exceptions. In drafting the Interim Final Rule, we briefly
discussed relevant provisions of the NTTAA and OMB Circular A-119, our
compliance with the statute and the Circular, and we requested comments
on our approach to the selection of standards. We also explained that
both the NTTAA and OMB Circular A-119 provide for certain exceptions to
selecting only standards developed or adopted by voluntary consensus
standards bodies, namely when doing so would be ``inconsistent with
applicable law or otherwise impractical.'' In the Interim Final Rule,
we identified those instances in which we had and had not adopted
voluntary consensus standards. In the instances in which we had not
adopted voluntary consensus standards, we provided two principal
reasons: first, that in most cases a voluntary consensus standard that
could meet the requisite technical goals was simply unavailable; and
second, that to the extent a potentially equivalent voluntary consensus
standard was available, the standard was too limiting and did not meet
our policy goals, including allowing for greater innovation by the
industry. In

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this final rule, we have adopted only voluntary consensus standards,
except for two government-unique standards (CMS Physician Quality
Reporting Initiative (PQRI) 2009 Registry XML Specification and the
Office of Management and Budget Standards for Maintaining, Collecting,
and Presenting Federal Data on Race and Ethnicity), a functional
standard relating to vocabularies included in RxNorm, and the specified
standards to protect electronic health information. We are aware of no
voluntary consensus standards that would serve as alternatives to these
standards for the purposes that we have identified. We encourage the
HIT Standards Committee to obtain public input, hold hearings on, and
recommend to the National Coordinator standards that have been
developed or adopted by voluntary consensus standards bodies.
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\1\ http://www.whitehouse.gov/omb/circulars_a119.
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3. Definition of Implementation Specification
We did not receive any comments applicable to the definition of
implementation specification and consequently did not make any changes
to the definition.
4. Definition of Certification Criteria
Comments. One commenter expressly stated its support for our
definition of certification criteria.
Response. We appreciate the commenter's support for our definition
of certification criteria and have not made any changes to the
definition in this final rule.
5. Definition of Qualified EHR
Comments. A couple of commenters asserted that there is uncertainty
in the industry with respect to what constitutes an EHR due both to the
seemingly inconsistent definitions of terms in the HITECH Act and to
the alternative definitions published by different organizations and
associations. The commenters made specific reference to the definition
of ``Qualified Electronic Health Record'' (``Qualified EHR'') at
section 3000 of the PHSA and to the term ``EHR'' found in the HITECH
Act at section 13400 of Subtitle D. The latter defines EHR as ``an
electronic record of health-related information on an individual that
is created, gathered, managed, and consulted by authorized clinicians
and staff.'' The former defines Qualified EHR as ``an electronic record
of health-related information on an individual that: (1) Includes
patient demographic and clinical health information, such as medical
history and problem lists; and (2) has the capacity: (i) to provide
clinical decision support; (ii) to support physician order entry; (iii)
to capture and query information relevant to health care quality; and
(iv) to exchange electronic health information with, and integrate such
information from other sources.'' Both commenters recommended that the
definition of Qualified EHR be clarified with one commenter suggesting
that the definition should follow the definition of EHR as it relates
to health care providers.
Response. We appreciate these comments and recognize that the
existence of multiple terms that include the word ``EHR'' can be
confusing. However, we believe that Congress intended for HHS to apply
the definition of a Qualified EHR found in section 3000 of the PHSA to
this regulation for specific reasons that cannot be overlooked. As a
result, we have decided not to adopt the recommendation to follow the
definition of the term EHR that is found in Subtitle D of the HITECH
Act. We discuss additional responses to comments on the definition of
Qualified EHR below.
Comments. A few commenters requested that we expand the definition
of Qualified EHR to include a variety of additional functionality and
that a Qualified EHR be able to comply with business or legal
requirements. These comments requested that we add required elements
for an EHR to constitute a Qualified EHR, including that the EHR: Have
a record-keeping capability for legal purposes; include certain
requirements for usability; enable health care providers to perform
several other actions not specified in the definition; and that certain
elements of patient demographic information be specified.
Response. We understand the rationale behind these commenters'
suggestions, but we do not believe that it is necessary to add more
prerequisite capabilities to the definition of Qualified EHR. We
believe Congress defined Qualified EHR to include a minimum level of
capabilities. Furthermore, to meet the definition of Certified EHR
Technology, a Qualified EHR must be certified in accordance with a
certification program established by the National Coordinator. As a
result, we believe that any additional capabilities a Qualified EHR
would need to possess to allow an eligible professional or eligible
hospital to be in a position to qualify for incentive payments under
the Medicare and Medicaid EHR incentive programs will be more
appropriately addressed through the Secretary's adoption of additional
standards, implementation specifications, and certification criteria.
Comments. Some commenters requested that we clarify some of the
terms in the definition of Qualified EHR such as ``capture,''
``query,'' ``other sources,'' and ``relevant to health care quality''
with respect to how they related to Certified EHR Technology. Another
commenter expressly stated that if we only intended to repeat the
statutory definition of Qualified EHR without modification, we should
at least clarify the meaning of demographic information.
Response. We do not believe that additional clarity is needed or
desirable for such terms because the meanings are context specific. The
intended meanings of these terms will depend significantly on the
contexts in which the terms are used and the associated capabilities of
the Certified EHR Technology. The terms' meanings may also be affected
by any standards and implementation specifications that are associated
with those capabilities and adopted. In certain circumstances, for
instance, the meaning of the phrase ``other sources'' as used in the
definition of Qualified EHR will depend on the specific context in
which electronic health information is being integrated or exchanged,
and perhaps on whether the source is external to or internal within the
Complete EHR or the EHR Module. Similarly, the meanings of the terms or
phrases ``capture,'' ``query,'' ``relevant to health care quality'' and
``demographic'' information may vary according the context of the
required capabilities of the EHR technology. In each of these
instances, we believe that the adopted certification criteria and
meaningful use objectives and measures will provide these contexts,
identify the associated required capabilities, and consequently clarify
the intended meanings of these terms.
6. Definition of Complete EHR
Comments. Some commenters supported our definition of Complete EHR
and believed that it was understandable, sufficient, and reasonable.
Other commenters, however, suggested that the definition of Complete
EHR was too narrow, because the term is tied to only those
certification criteria adopted by the Secretary. These commenters
argued that the Complete EHR and the adopted certification criteria
should be more comprehensive and should include functionality that is
not presently required for a Complete EHR to achieve certification.
Many of these commenters referenced the Health Level Seven (HL7) EHR
System Functional Model (EHR-S

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FM) and contended that what we had defined as a Complete EHR did not
align with or include all of the functionality specified in the EHR-S
FM. One commenter requested that we clarify what we meant by ``we fully
expect some EHRs to have capabilities beyond those addressed by
certification criteria'' when we made this point during our discussion
of the definition of Complete EHR in the preamble of the Interim Final
Rule. Other commenters recommended specific wording changes to the
definition.
Response. In the Interim Final Rule we defined Complete EHR to mean
``EHR technology that has been developed to meet all applicable
certification criteria adopted by the Secretary.'' We clarified that
the term Complete EHR is ``meant to encompass EHR technology that can
perform all of the applicable capabilities required by certification
criteria adopted by the Secretary and distinguish it from EHR
technology that cannot perform those capabilities.'' We believe that
commenters misunderstood the scope and purpose of the regulatory
definition and believe that the definition effectively fulfills its
regulatory purpose. We intend for the definition of Complete EHR to be
used to clearly identify EHR technology as being able to perform, at a
minimum, all of the applicable capabilities required by certification
criteria adopted by the Secretary, and thereby, as providing eligible
professionals or eligible hospitals with the technical capabilities
they need to support their achievement of meaningful use of Certified
EHR Technology. It is in this context that we view such EHR technology
as ``complete.''
We recognize that many commenters recommended a definition of
``Complete EHR'' that would be more comprehensive than the definition
we provided. Many commenters contended that HIT exists and is available
for eligible professionals and eligible hospitals to implement, and
much of it includes a myriad of capabilities far surpassing the
capabilities required to meet the definition of Complete EHR. We do not
dispute that point. We also understand that the capabilities included
in a Complete EHR, as defined for the purposes of this regulation, may
not encompass all of the capabilities a specific eligible professional
or eligible hospital or for that matter any health care provider, may
deem essential to meet their unique business needs and use cases.
This definition, however, does not in any way preclude any
additional capabilities from being included in a Complete EHR or
implemented in a complementary fashion. The definition sets forth a
floor, not a ceiling, and serves to signify that once tested and
certified to all applicable certification criteria, a Complete EHR
meets the definition of Certified EHR Technology. For this reason, we
did not seek to craft this definition in a way that signified that a
Complete EHR would be able to provide all of the capabilities a health
care provider desired or deemed necessary, or that the entity's EHR
could only include the capabilities for which the Secretary has adopted
certification criteria. Nor did we define Complete EHR according to a
particular functional model, because doing so would have been
inconsistent with the regulatory purpose of the definition.
In light of public comment and to further clarify the regulatory
purpose of the definition of Complete EHR as well as make clear that a
Complete EHR should not be misinterpreted to mean EHR technology that
is any more comprehensive than the certification criteria to which it
was tested and certified, we have added the phrase ``at a minimum'' to
the definition. The final definition of Complete EHR will therefore
read ``EHR technology that has been developed to meet, at a minimum,
all applicable certification criteria adopted by the Secretary.''
As a related point, we would also note that an eligible
professional or eligible hospital would need to use a capability that
is included among the adopted certification criteria to meet the
associated meaningful use objective or measure. The eligible
professional or eligible hospital therefore could not attempt to use a
capability that is superfluous to certification to demonstrate the
meaningful use of ``Certified EHR Technology.'' We understand that the
Medicare and Medicaid EHR Incentive Programs final rule discusses this
issue more fully in several places, and we defer to those discussions
concerning the requirements for achieving meaningful use of Certified
EHR Technology.
Comment. In the context of the definition of Complete EHR, one
commenter asked for clarification regarding how many certification
criteria a Complete EHR must be developed to meet.
Response. For the purposes of meeting the definition of Complete
EHR, EHR technology designed for an ambulatory setting (to be used by
eligible professionals) must be certified to all of the certification
criteria adopted at 45 CFR 170.302 and 45 CFR 170.304, and EHR
technology designed for an inpatient setting (to be used by eligible
hospitals) must be certified to all of the certification criteria
adopted at 45 CFR 170.302 and 45 CFR 170.306.
7. Definition of EHR Module
Comments. Numerous commenters strongly supported our inclusion of a
modular approach to meet the definition of Certified EHR Technology.
Many of these commenters saw this approach as a way to spur greater
innovation in the HIT marketplace, provide more choices for health care
providers, and generally broaden the appeal of HIT and expedite its
adoption. Some commenters noted, however, that they believed the
definition needed further clarification with respect to what would
constitute an EHR Module. In most cases, these commenters provided
examples of technologies that they believed should meet the definition
of EHR Module and they sought confirmation that these technologies
would meet the definition. Included among these technologies were
radiology information systems (RIS), picture archiving and
communication systems (PACS), PHRs, speech recognition software,
electrocardiogram systems, remote patient monitoring (RPM) devices, and
other electronic devices including non-health care devices.
Response. In the Interim Final Rule, we defined an EHR Module to
mean ``any service, component, or combination thereof that can meet the
requirements of at least one certification criterion adopted by the
Secretary.'' Consequently, EHR Modules, by definition, must provide a
capability that can be tested and certified in accordance with at least
one certification criterion adopted by the Secretary. Therefore, if an
EHR Module does not provide a capability that can be tested and
certified at the present time, it is not HIT that would meet the
definition of EHR Module. We stress ``at the present time,'' because as
new certification criteria are adopted by the Secretary, other HIT
could be developed and then tested and certified in accordance with the
new certification criteria as EHR Modules.
We encourage eligible professionals and eligible hospitals to use
any and all HIT they believe will help make the health care they
deliver more effective and efficient. However, unless the HIT is tested
and certified to at least one certification criterion for use as part
of Certified EHR Technology, it does not constitute an EHR Module for
the purposes of this regulation. Eligible professionals and eligible
hospitals are not prohibited from using or implementing this HIT, but
again, at the present time, such HIT cannot

[[Page 44596]]

constitute an EHR Module and serve as a necessary component of
Certified EHR Technology for eligible professionals or eligible
hospitals to use when seeking to achieve meaningful use as defined in
the Medicare and Medicaid EHR Incentive Programs final rule.
In response to these comments, we would also like to clarify our
conceptualization of an EHR Module. An EHR Module could provide a
single capability required by one certification criterion or it could
provide all capabilities but one, required by the certification
criteria for a Complete EHR. In other words, we would call HIT tested
and certified to one certification criterion an ``EHR Module'' and HIT
tested and certified to nine certification criteria an ``EHR Module,''
where ten certification criteria are required for a Complete EHR. We
have not made any changes to the definition of EHR Module as a result
of these comments or the comments addressed below.
Comment. One commenter asked whether we meant to include in the
definition of EHR Module ``interfaces'' that perform data mapping or
transformation. The commenter raised this question while noting that
some organizations use multiple interfaces to interconnect their HIT
systems and that it would be an arduous task for these organizations to
ensure that all individual interfaces are certified. Another commenter
sought clarification regarding what we meant when we stated as an
example in the Interim Final Rule that EHR Modules could be ``an
interface or other software program that provides the capability to
exchange electronic health information.''
Response. As discussed above, to meet the definition of EHR Module,
HIT would need to provide a capability that could be tested and
certified to at least one certification criterion. If a certification
criterion has therefore been adopted that requires a particular
capability for exchanging electronic health information, an interface
or other software program that provides that capability could be tested
and certified as an EHR Module. In many circumstances, an interface or
program may provide valuable functionality, but not a capability for
which a certification criterion has been adopted. For example, software
implemented by an eligible professional that performs data translation
or mapping between two databases or data sets may provide critical
functionality, yet that software would not constitute an EHR Module.
Similarly, interfaces between ``HIT systems'' may be critical to the
functionality of the separate systems, but they themselves would not be
EHR Modules.
In those circumstances in which an interface or other software
program is an integral component of an EHR Module without which it
would not be able to be tested and certified, then such interface or
other software program, though not itself an EHR Module, would function
as a critical piece of the overall EHR Module presented for testing and
certification. For example, a software program that would permit an
eligible professional or eligible hospital to electronically exchange
health information with other eligible professionals or eligible
hospitals could be tested and certified as an EHR Module, if it
provides the capability to electronically exchange health information
according to standards adopted by the Secretary. In this example,
whatever comprises the software program would be considered part of the
EHR Module that is tested and certified.
Finally, in situations where an eligible professional or eligible
hospital believes that it has multiple HIT systems that would each meet
the definition of EHR Module, we suggest that the eligible professional
or eligible hospital evaluate whether these systems could be combined
with other systems to constitute a Complete EHR. If they are capable of
being combined to form a Complete EHR, it may be more expeditious and
beneficial for an eligible professional or eligible hospital to simply
seek Complete EHR testing and certification.
Comments. A few commenters requested that we clarify how EHR
Modules would be tested and certified to adopted privacy and security
certification criteria. Other commenters asked whether we meant to
allow for there to be EHR Modules that provided only privacy and
security capabilities.
Response. These comments pertain to the certification programs
rule, and are outside of the scope of this rule. We therefore respond
to these comments in the Temporary Certification Program final rule (75
FR 36158).
8. Definition of Certified EHR Technology
Comments. Multiple commenters commended ONC for recognizing the
need to certify EHR Modules and enabling certified EHR Modules to be
used in combination to meet the definition of Certified EHR Technology.
These commenters noted that this approach makes it clear that eligible
professionals and eligible hospitals will have the flexibility to
select certified EHR modules that are the most useful to them, and can
achieve meaningful use either with combinations of certified HIT or a
single EHR system. However, some commenters mentioned that the
definition is unnecessarily ambiguous, and subject to possible
alternative interpretations. Some commenters also commented on certain
statements in the preamble regarding EHR Modules and queried how a
proper combination of EHR Modules could be used to meet the definition
of Certified EHR Technology. Other commenters, while acknowledging that
adopted certification criteria will determine in part what constitutes
Certified EHR Technology, urged ONC to revise the definition to include
only patient care functionality. Finally, a few commenters offered
specific word changes for the definition to improve its clarity.
Response. In the Interim Final Rule, we defined Certified EHR
Technology to mean ``a Complete EHR or a combination of EHR Modules,
each of which: (1) Meets the requirements included in the definition of
a Qualified EHR; and (2) Has been tested and certified in accordance
with the certification program established by the National Coordinator
as having met all applicable certification criteria adopted by the
Secretary.'' With respect to a combination of EHR Modules, we clarified
in the preamble of the Interim Final Rule that:

As long as each EHR Module has been separately tested and
certified in accordance with the certification program established
by the National Coordinator * * * to all of the applicable
certification criteria adopted by the Secretary, a proper
combination of certified EHR Modules could meet the definition of
Certified EHR Technology. To clarify, we are not requiring the
certification of combinations of certified EHR Modules, just that
the individual EHR Modules combined have each been certified to all
applicable certification criteria in order for such a
``combination'' to meet the definition of Certified EHR Technology.

Many commenters appeared to be confused by the inclusion of ``each
of which'' in the definition of Certified EHR Technology. Other
commenters also stated that ``each of which'' was awkwardly placed,
making it difficult to interpret how the combination of EHR Modules
must satisfy the subsequent requirements of the definition. This
confusion also made it difficult to understand the clarifying remarks
reiterated above regarding our intention to avoid implying that a
combination of certified EHR Modules had to be certified a second time
when a proper combination had been created. We generally agree with
these comments and are revising the definition slightly

[[Page 44597]]

to avoid this ambiguity and to clarify that the definition of Certified
EHR Technology can be met in either of two ways.
The first way that the definition of Certified EHR Technology can
be met is for a Complete EHR to: (1) Meet the requirements included in
the definition of a Qualified EHR, and (2) be tested and certified in
accordance with the certification program established by the National
Coordinator as having met all applicable certification criteria adopted
by the Secretary. The second way that the definition of Certified EHR
Technology can be met is if each constituent EHR Module of a
combination of EHR Modules has been tested and certified in accordance
with the certification program established by the National Coordinator
as having met all applicable certification criteria adopted by the
Secretary and the resultant combination also meets the requirements
included in the definition of a Qualified EHR.
As previously written, it was unclear to many commenters that the
comma preceding ``each of which'' was meant to separately apply a
Complete EHR and ``combination of EHR Modules'' to the subsequent
requirements. Our intention was that a combination of EHR Modules would
have to provide the capabilities necessary to meet the definition of a
Qualified EHR and that the EHR Modules combined would have each been
tested and certified in accordance with the certification criteria
applicable to each EHR Module.
In response to commenters, we have decided to revise the definition
of Certified EHR Technology to state explicitly the two distinct ways
the definition can be met. The revised definition will read as follows.
Certified EHR Technology means:
(1) A Complete EHR that meets the requirements included in the
definition of a Qualified EHR and has been tested and certified in
accordance with the certification program established by the National
Coordinator as having met all applicable certification criteria adopted
by the Secretary; or
(2) A combination of EHR Modules in which each constituent EHR
Module of the combination has been tested and certified in accordance
with the certification program established by the National Coordinator
as having met all applicable certification criteria adopted by the
Secretary, and the resultant combination also meets the requirements
included in the definition of a Qualified EHR.
As discussed in the Temporary Certification Program final rule, a
pre-coordinated integrated bundle of EHR Modules would fall under the
second definition of Certified EHR Technology, although each EHR Module
of the bundle would be tested and certified at the same time rather
than separately. Therefore, provided that a proper combination of EHR
Modules has been created, combinations of EHR Modules could be tested
and certified either at the same time or at separate times, to meet the
definition of Certified EHR Technology.
Finally, we believe that commenter suggestions to revise the
definition of Certified EHR Technology to reference specific
certification criteria are misguided. The definition, regardless of the
certification criteria that must be included in a Complete EHR or
combination of EHR Modules, must be able to accommodate changes in
certification criteria over time. Accordingly we believe that the final
definition meets this intended goal and conveys a clear meaning.
Comments. Some commenters appeared to interpret our definition as
providing that EHR Modules must be used to meet the definition of
Certified EHR Technology. Of these commenters, some requested that we
clarify whether health care providers would be required to obtain
certification of EHR Modules that no vendors support. Other commenters
asked whether non-certified ``EHR modules'' could be used in
combination with a Complete EHR or in combination with EHR Modules that
are used to meet the definition of Certified EHR Technology.
Response. We would like to make clear that eligible professionals
and eligible hospitals are not required to use EHR Modules in order to
meet the definition of Certified EHR Technology. The use of EHR Modules
is completely voluntary and provides an alternate avenue for eligible
professionals and eligible hospitals who seek to implement more
customized HIT solutions while still meeting the definition of
Certified EHR Technology. Commenters who expressed concerns about their
responsibility for seeking certification for EHR Modules for which no
vendor supports did not provide specific examples, and we are uncertain
as to the basis for their concerns. Regardless, we reiterate that the
use of EHR Modules is voluntary and we believe that most eligible
professionals and eligible hospitals that are adopting HIT for the
first time will have a variety of Complete EHRs available from which to
choose.
We also clarify that only those EHR Modules that provide
capabilities necessary to meet the definition of Certified EHR
Technology will need to be tested and certified. That being said,
eligible professionals and eligible hospitals are free to utilize any
other type of HIT to complement or in combination with Certified EHR
Technology, including HIT that provides capabilities for other purposes
not related to meaningful use.
Comments. Some commenters suggested that our definition was too
broad. Most of these commenters argued that we should permit eligible
professionals to adopt only Complete EHRs and EHR Modules that were
certified as including only those capabilities applicable to their
specialty or practice. In other words, these commenters sought for the
definition of Certified EHR Technology to be interpreted in such a way
as to permit different specialty-oriented variations of Certified EHR
Technology to exist.
Response. At the present time, we believe that the definition of
Certified EHR Technology already includes some of the flexibility these
commenters request. We permit, for example, a Complete EHR designed for
an ambulatory setting and a Complete EHR designed for an inpatient
setting both to meet the definition of Certified EHR Technology, even
though each is compliant with a slightly different set of applicable
certification criteria. In that regard, we believe we have integrated a
balanced and appropriate amount of flexibility into the definition of
Certified EHR Technology, which will also allow us to make additional
refinements over time. We believe that it is possible based on industry
need for us to specify in a future rulemaking sets of applicable
certification criteria for Complete EHRs and EHR Modules designed for
particular clinical settings.
9. Definition of Human Readable Format
Comments. A number of commenters across several certification
criteria requested that we clarify the meaning of ``human readable
format.'' These commenters questioned what human readable format meant
when it was used in the certification criteria and offered examples of
what they thought would constitute human readable format such as, style
sheets and PDFs. A couple of commenters suggested that human readable
format should consider patients' linguistic needs. A commenter
requested we discuss the compliance requirements associated with the
Americans with Disabilities Act and the relevant sections of the
Rehabilitation Act of 1973 to ensure human readable format was meant to
include an obligation to provide people with disabilities alternative
formats such as large print or Braille.

[[Page 44598]]

Response. In the Interim Final Rule, we discussed the meaning of
human readable format and provided examples of what we believe would
constitute human readable format. We reiterate that discussion below.

We believe that in order to recognize the enormous potential of
HIT, greater standardization in future years is necessary. In that
regard, we recognize that more advanced interoperability requires
health information to be represented by specific vocabularies and
code sets that can be interpreted by EHR technology as well as
converted and presented in a readable format to the users of such
technology. At the present time we recognize that implementing
certain vocabularies and code sets in EHR technology is a difficult,
technical undertaking. For that reason, we have not adopted specific
vocabularies and code sets for a number of the exchange purposes * *
* We have, however, as a transitional step, adopted certification
criteria that require Certified EHR Technology to be capable of
presenting health information received in human readable format. By
human readable format, we mean a format that enables a human to read
and easily comprehend the information presented to them regardless
of the method of presentation (e.g., computer screen, handheld
device, electronic document). This would likely require information
in coded or machine readable format to be converted to, for example,
its narrative English language description. In an effort to further
the transition to, and prevalence of, more specific vocabularies and
code sets, we are interested in public comment regarding industry
readiness if we were to adopt certification criteria requiring the
use of additional vocabularies and code sets in parallel with
meaningful use Stage 2. Such certification criteria could include
not only that Certified EHR Technology be capable of presenting
information in human readable format but also that it be capable of
automatically incorporating certain vocabulary or code sets (i.e.,
machine readable information).

The term human readable format is used in two contexts, when coded
health information should be displayed to an eligible professional or
(to a health care professional within) an eligible hospital using
Certified EHR Technology and in the circumstances where Certified EHR
Technology must be capable of generating an electronic copy of health
information for individuals. Each context may dictate a different human
readable format. For example, the use of a style sheet may be
appropriate for both health care professionals that are interacting
with Certified EHR Technology as well as individuals who receive an
electronic copy of their health information to access at a later time.
In other circumstances it may be more appropriate for a health care
professional to view health information in human readable format on
their handheld device while an individual may seek an electronic
document, such as a PDF. Given the requests for additional clarity
regarding the meaning of human readable format, we have decided to
define the term in this final rule as follows: Human readable format
means a format that enables a human to read and easily comprehend the
information presented to him or her regardless of the method of
presentation (e.g., computer screen, handheld device, electronic
document).
We noted in the Interim Final Rule that the standards,
implementation specifications, and certification criteria adopted by
the Secretary applied to Complete EHRs and EHR Modules, not to persons
or entities. We also stated that nothing required by the Interim Final
Rule should be construed as affecting existing legal requirements under
other Federal laws. Accordingly, this final rule does not affect an
eligible professional or eligible hospital's requirements to comply
with other Federal laws in the event health information is provided in
human readable format and persons with disabilities require reasonable
accommodations.
10. Definition of User
Comments. A number of commenters commenting on several
certification criteria requested that we clarify the meaning of the
term ``user.''
Response. We recognize that the term user is referenced in the
certification criteria and at times could be interpreted differently.
We believe this flexibility is necessary because a user may be
different depending on the certification criterion and the context
within which the capability it specifies is used. Accordingly, we
believe a user could be a health care professional or office staff,
someone who might interact directly with Certified EHR Technology or
that it could also be software program or service.

D. Final Rule Amendments to Adopted Standards, Implementation
Specifications, and Certification Criteria Sec. Sec. 170.202, 170.205,
170.207, 170.210, 170.302, 170.304, 170.306

1. Flexibility and Innovation
Comments. Many commenters requested that we provide more
flexibility in the final rule to accommodate new developments in HIT.
These commenters agreed with our approach to identify minimum standards
for certain code sets and they recommended a similar approach for other
standards. Some commenters suggested alternative approaches to adopting
standards, such as adopting standards at a higher level of abstraction
(e.g., HL7 2.x, where ``x'' could be any version within the version 2
family) and accompanying the adopted standards with detailed
implementation specifications or guidance outside of the rulemaking
process.
Response. We appreciate commenters' support for the ``minimum
standard'' approach that we established in the Interim Final Rule. We
believe that code sets are an appropriate type of standard to set as a
``minimum.'' In the Temporary Certification Program final rule, we
discuss the approaches available to the Secretary to identify and
accept newer versions of adopted minimum code set standards. Below, we
discuss how we have added flexibility into this final rule and how we
can add flexibility in future rulemakings.
In many cases, however, our flexibility may be limited due to legal
requirements to adopt substantive requirements through following the
procedures of the Administrative Procedure Act (APA). Depending upon
the circumstances and subject matter, we may not be able to alter the
substantive standards that apply to Certified EHR Technology solely
through guidance. In addition, a real and practical need to ensure
consistency among various standards regulations constrains the amount
of flexibility we can incorporate into the standards we adopt.
In addition, in accordance with Office of the Federal Register
regulations related to ``incorporation by reference,'' which we follow
for this final rule, the publications we reference are ``limited to the
edition of the publication that is approved'' and do not include
``[f]uture amendments or revisions of the publication.'' Consequently,
we do not include regulatory language that refers, for instance, to
``Version 1.X'' when ``X'' remains a variable.
We do believe, however, that additional flexibility can be added
into this and future rulemakings through at least one of four currently
identified means:
Alternative Standards. In the Interim Final Rule and in
this final rule, we have adopted ``alternative'' standards (and
applicable implementation specifications) for several certification
criteria. As a general rule, when an adopted certification criterion
refers to two or more standards as alternatives, use of at least one of
the alternative standards will be considered compliant with the
certification criterion. For the certification criterion at Sec.
170.302(k)(1), for instance, we have adopted HL7 2.3.1

[[Page 44599]]

and HL7 2.5.1 as alternatives, and the use of either standard (and the
applicable implementation specifications) would be sufficient to comply
with the certification criterion. In each of these instances, we have
tried to balance the need for flexibility with the goal of advancing
interoperability, while also taking into account that the HIT industry
has not yet migrated to a single specific standard for certain
purposes. In some cases, this balancing has required the adoption of
certification criteria that requires certain EHR technology to be
capable of receiving electronic health information formatted according
to a standard that it is not natively capable of generating. For
example, with respect to patient summary records, we have adopted the
Continuity of Care Document and Continuity of Care Record standards as
alternatives. As a condition of certification, section 170.304(i)(1)
provides as an additional requirement that upon receipt of a patient
summary record formatted in the alternative standard, the EHR
technology must be capable of displaying the patient summary record in
human readable format. We believe this final rule correctly balances at
this stage of EHR adoption our goal of promoting interoperability with
the HIT industry's ability to comply with the certification criteria
and its need for flexibility. Consistent with our long-term goals for
interoperability, we anticipate that this balance will need to change
as the HIT industry migrates to single specific standards for
particular purposes.
Minimum Code Set Standards. As previously discussed in the
Interim Final Rule, we adopted several minimum code set standards. It
is important to note that these code set standards set the floor, not
the ceiling, for testing and certification. If, and when, the Secretary
accepts a newer version of an adopted minimum standard code set, the
Secretary will, in effect, raise the ceiling for what is permitted for
testing and certification as well as whether Certified EHR Technology
can be upgraded to that newer version without adversely affecting the
Certified EHR Technology's certified status. For context purposes we
repeat a portion of the Interim Final Rule's preamble that discussed
our approach to minimum code set standards.

We have implemented this approach by preceding references to
specific adopted standards with the phrase, `at a minimum.' In those
instances, the certification criterion requires compliance with the
version of the code set that has been adopted through incorporation
by reference, or any subsequently released version of the code set.
This approach will permit Complete EHRs and EHR Modules to be tested
and certified, to, `at a minimum,' the version of the standard that
has been adopted or a more current or subsequently released version.

We would note that consistent with this approach the Secretary has
proactively identified and deemed acceptable newer versions of the
following adopted ``minimum standard'' code sets:
(1) LOINC version 2.3, released on February 26, 2010; and
(2) CVX--Vaccines Administered, March 17, 2010.
We are consequently using this opportunity to inform Complete EHR
and EHR Module developers, prospective ONC-Authorized Testing and
Certification Bodies, and the rest of the public of the Secretary's
recognition of these newer versions of certain adopted ``minimum
standard'' code sets. We reiterate that use of these newer versions is
voluntary. We also note in accordance with 45 CFR 170.455(b)(2) that
Certified EHR Technology may be upgraded to comply with these newer
versions at any time without adversely affecting the certification
status of the Certified EHR Technology.
Optional Standards, Implementation Specifications, and
Certification Criteria. We believe that additional flexibility and
specificity can be introduced into this and future cycles of rulemaking
through the adoption and designation of ``optional'' standards,
implementation specifications, and certification criteria. Optional
standards, implementation specifications, and certification criteria
would be voluntary and would not be required for testing and certifying
a Complete EHR or EHR Module. We believe that optional standards,
implementation specifications, and certification criteria will also
help better prepare the HIT industry for future mandatory certification
requirements.
Standards and Backwards Compatibility. In previous
rulemakings, specifically the Secretary's adoption of electronic
prescribing (e-prescribing) standards (70 FR 67579) related to the
Medicare Part D prescription drug program, HHS discussed a process to
improve flexibility in regulatory requirements which involves
``backwards compatibility.'' HHS described backwards compatibility as
meaning that a newer version of a standard retains at a minimum the
full functionality of the version previously adopted in regulation, and
that the newer version would permit the successful completion of the
applicable transaction(s) with entities that continue to use the older
version(s). HHS discussed that if a newer version of a standard were
backward compatible with an adopted standard, it would be possible to
pursue a more expedited approach to permit the utilization of the newer
version while still remaining in compliance with the law. We believe
that the approach established in the e-prescribing rulemaking could be
leveraged in many situations for the standards and implementation
specifications adopted for HIT certification. However, we note that
this approach can only be implemented when a newer version of a
standard is technically capable of fully functioning with the adopted
version of the standard to conduct the specified transaction.
Much like minimum code set standards, we could foresee possibly
adopting a backward compatible version of a previously adopted standard
and allowing entities to voluntarily use the newer version for a period
of time. In such cases, much like a minimum code set standard, Complete
EHR and EHR Module developers would be permitted to have their Complete
EHR or EHR Module certified according to the adopted backward
compatible version, and eligible professionals and eligible hospitals
in possession of Certified EHR Technology would be permitted to upgrade
voluntarily their Certified EHR Technology to include the adopted
backwards compatible version. Given that we anticipate adopting new or
modified standards, implementation specifications, and certification
criteria every two years in sync with the initiation of a new
meaningful use stage, we believe that the Secretary's adoption of
backward compatible versions of standards would generally be limited to
intermediate years (i.e., 2012 and 2014). To accomplish the adoption of
a backwards compatible version, we would take an approach very similar
to the approach described in the final e-prescribing regulation.
We would first review whether the new version of an adopted
standard retains at a minimum the full functionality of the adopted
version of the standard as well as whether it enables the successful
completion of the applicable transaction(s) with entities that continue
to use the older version(s). We would then review whether a standard
should be updated with a new version and whether use of either the new
version or the older version would be considered compliant as well as
whether use of the new version would conflict with any already existing
regulatory requirements. If we believe that the Secretary's adoption of
a newer version of a standard on a voluntary

[[Page 44600]]

basis would be appropriate, we would then seek the advice of the HIT
Standards Committee to evaluate the newer version of the standard and
to solicit relevant public input. The Secretary would then recognize or
adopt for voluntary use the new version of the standard in a Federal
Register publication. At that point, use of either the new or old
version would be considered compliant. Entities that would voluntarily
adopt the later backward compatible version of the standard would
remain obligated to accommodate the earlier adopted version without
modification. Prior to the Department formally retiring the older
version of the standard and mandating the use of the later version, the
Department would engage in notice and comment rulemaking.
2. Transport Standards
Comments. Generally, commenters echoed one of two responses: Some
urged for the complete removal of SOAP and REST and others requested
that we provide detailed implementation specifications for SOAP and
REST along with the identification of the transactions to which SOAP
and REST were applicable. Some commenters also stated that neither
standard was sufficiently specified in order to ensure
interoperability, while others pointed out that it appeared that we had
globally applied the usage of SOAP or REST to all adopted standards,
which, if true, would cause conflicts with several adopted standards
(e.g., it was noted that the HL7 standards we adopted utilize Minimum
Lower Layer Protocol (MLLP) as the transport standard and not SOAP or
REST).
Response. We have considered the public comments received on this
matter and we are convinced that it is prudent to remove the adopted
standards, SOAP and REST. We did not intend for the significant
potential conflicts identified by commenters to occur as a result of
our adoption of SOAP and REST. We have determined that it would be more
appropriate and reasonable for us not to require at the present time
specific transport standards as a condition of certification. We hope
that this will reduce some of the burden on Complete EHR and EHR Module
developers and provide greater opportunities for innovation. With that
said, we plan to carefully watch the impact of this decision and its
affect on interoperability. We encourage Complete EHR and EHR Module
developers to utilize transport standards that will help the industry
coalesce around common methods for electronic health information
exchange, and we plan to examine this decision in future rulemakings.
3. Certification Criteria and Associated Standards and Implementation
Specifications
We have organized our discussion of the final certification
criteria according to the order in which they are currently specified
at 45 CFR 170 subpart C. We note that the final regulatory citations
will have changed for many certification criteria and encourage the
public to review, in full, the final regulatory text specified in
subpart C of part 170 in the regulation text of this final rule. We
begin with the certification criteria at 45 CFR 170.302 (general
certification criteria for Complete EHRs and EHR Modules), move on to
45 CFR 170.304 (specific certification criteria for Complete EHRs and
EHR Modules designed for an ambulatory setting) and end with 45 CFR
170.306 (specific certification criteria for Complete EHRs or EHR
Modules designed for an inpatient setting). We also include, where
appropriate, a discussion of the adopted standard(s) and implementation
specifications associated with each certification criterion. For each
final certification criterion, we start with an overview of the final
version and then discuss and respond to public comments.
a. General Certification for Complete EHRs or EHR Modules--Sec.
170.302
Section 170.302(a)--Drug-Drug, Drug-Allergy, Drug-Formulary Checks

[[Page 44601]]

Comments. Based on the example given in the preamble of the Interim
Final Rule, several commenters believed that we required real-time
alerts to utilize a pop-up message or sound. Commenters stated that the
method of delivering real-time alerts should not be included in the
regulation as it would restrain innovation. One commenter expressed
concern that the requirements of this certification criterion were
overly specific with respect to how the Certified EHR Technology needed
to perform the tasks rather than focusing on the desired result. The
commenter recommended the certification criterion be modified to ensure
that such alerts are clearly visible to the physicians at the point-of-
care. Some commenters recommended that the term ``notification'' should
replace the term ``alert'' for this and other certification criterion
because the term alert implied a particular implementation whereas
notification was more neutral.
Response. Unfortunately, many of the commenters who reacted to our
example also believed that it was a requirement. We simply added the
example of a pop-up message or sound in the preamble of the Interim
Final Rule to make the requirement clear. The use of a pop-up message
or sound was not a specified requirement in the regulation text. We
agree with the commenters who explained that there may be better ways
to provide alerts. For the purposes of testing and certification, we
leave it entirely up to Complete EHR and EHR Module developers to
innovate in this area and provide capabilities that are both easy to
use and prevent medical errors. Additionally, we agree with the
commenters who suggested that we replace ``alert'' with
``notification,'' and we have made that change globally across all
certification criteria that used the term alert.
Comments. A few commenters requested clarification of the
requirement to track and report on the number of alerts responded to by
a user. A commenter requested clarification on why the number of alerts
is captured but not what the user did with the alert and if this data
is going to be used to rate providers based upon the number of alerts
they received. Two commenters requested that ``responded to by a user''
be clarified and asked whether it meant that a user had taken a
different action as a result of the alert. One commenter recommended
removing the alert requirement unless it is more clearly specified. One
commenter recommended deleting the requirement on alert statistics
because it could lead to alert fatigue. A few commenters expressed
concern about the ability to deactivate, modify, and add rules for
drug-drug and drug-allergy checking. These commenters recommended that
this capability be removed because of the risk to patient safety. A
commenter noted that treating physicians should have the ability to
ignore alerts in light of other clinical facts about the patient and
felt that providing the ability to delete or modify alerts in a way
that would be inconsistent with current medical standards would be
irresponsible and contrary to the meaningful use goal of preserving the
health and safety of patients. Other commenters requested clarification
as to whether the ability to ``deactivate'' rules implied the ability
to remove specific rules or drug pairs as they exist in
commercially[hyphen]available clinical decision support (CDS)
databases; the ability to ``modify'' rules implied that an
administrator would be able to change the rules as they exist in these
commercially[hyphen]available CDS databases; and the ability to ``add''
new rules implied that the administrator could create new rules in
commercially[hyphen]available CDS databases. The commenters interpreted
``modify'' to mean, for example, the ability to override or change
severity setting; and ``add'' to mean activating a category of CDS,
such as drug[hyphen]drug interactions, but not individual rules; and
``deactivate'' as the ability to ``turn off'' specific types of rules.
Another commenter requested clarification as to whether the requirement
for customization would be met if a system administrator were to set
the selected severity level to reflect the collective decision of a
practice or if alerts must be tailored on an EP-by-EP basis. A
commenter requested clarification on what qualifies as a ``response''
to an alert. One commenter recommended that the rule clarify that
``responded to by a user'' means in a way which meaningfully addresses
the alerts. A couple of commenters stated that centrally hosted
services would have problems complying with the customization
requirements because the hosting vendor takes responsibility for the
administration, maintenance and updating of the clinical decision
support rules including alerts for drug interactions alerts, including
drug-drug, drug-allergy and drug-problem. These commenters were
concerned that allowing each of their clients to create local drug-
interaction rules would slow their ability to provide important updates
to their client base, since this would require navigation of a complex
hierarchy of preferred local rules. These local rules would also
introduce clinical risk if old local rules could create a conflict with
a clinically appropriate global, updated rule.
Response. Based on the significant number of comments presenting
diverse interpretations of these provisions, we determined that this
certification criterion needed further clarification and have revised
it accordingly. Our intention related to the alert statistics
capability had been to mirror the clinical decision support capability.
With respect to customization, we sought to provide users of Certified
EHR Technology with a way to adjust the severity level for which alerts
are presented. In response to public comment, and to clarify what we
believe Certified EHR Technology must include as a condition of
certification, we have removed the ``alert statistics'' part of the
certification criterion altogether and revised the ``customization''
part of the certification criterion to more clearly specify this
capability. Our revisions focus on Certified EHR Technology's
capability to allow certain users (e.g., those with administrator
rights) with the ability to adjust notifications provided for drug-drug
and drug-allergy checks (e.g., set the level of severity for which
notifications are presented).
Comment. A commenter stated that use of age as a required data
element in this certification criterion is a problem

[[Page 44602]]

because drug databases handle age in non-standard ways. It was also
stated that for geriatric patients weight is also considered along with
age.
Response. We agree with this commenter. After considering this
comment, particularly in light of the potentially divergent
interpretations of this certification criterion we noted above, we have
removed ``age'' from the certification criterion. It was never our
intention, as could have been anticipated, to require that Certified
EHR Technology be capable of performing checks that relate type or
dosage of drugs to the patient's age, or ``drug-age checks.''
Comment. A commenter encouraged ONC to add adverse drug events to
the certification criterion and to identify candidate standards for its
inclusion to support meaningful use Stage 2.
Response. We appreciate the suggestion and believe that identifying
adverse drug events is important. Because the final meaningful use
Stage 1 requirements under the Medicare and Medicaid EHR incentive
programs do not include such a requirement, though, we do not believe
that it would be appropriate at the present time to add such a
requirement as a condition of certification. This does not preclude
Complete EHR or EHR Module developers from including such
functionality.
Comment. A couple of commenters requested clarification on what
CPOE means in the certification criterion. A commenter requested that
ONC clarify that this certification criterion applies only to the
order-entry workflow and is not applicable to other office processes or
workflows which might involve the same clinical data but which would
not necessarily generate these alerts.
Response. We clarify for commenters that our inclusion of CPOE in
the certification criterion is meant to indicate that notifications
should occur based on new medication orders, in addition to a patient's
current medications and medication allergies, as they are being
entered. In response to the other commenter's request for
clarification, we believe that notifications will occur during the
order-entry workflow.
Comment. A commenter requested that the rule be clarified to
explicitly require that drug-drug, drug-allergy, and drug formulary
checks occur based on information and medication lists in an
individual's complete medical record derived from all relevant
providers, not only the drug list of the specific provider.
Response. We clarify that we expect Certified EHR Technology to
perform drug-drug and drug-allergy checks based on medication list and
medication allergy list information included within Certified EHR
Technology as structured data. We recognize that Certified EHR
Technology may also store health information in scanned documents,
images, and other non-interoperable non-computable formats and,
consequently, do not expect Certified EHR Technology to be capable of
reading or accessing the information in these other formats for the
purposes of performing drug-drug and drug-allergy checks.
Comment. A commenter requested that ONC clarify that EHR vendors
will not be required to remove the option to disable drug-drug and
drug-allergy checks.
Response. While we do not require that the option to disable drug-
drug and drug-allergy checks be removed as a condition of
certification, we note that in order for an eligible professional or
eligible hospital to become a meaningful user of Certified EHR
Technology this capability must be enabled.
Comments. Several commenters noted that the NCPDP Formulary and
Benefits standard is not used in an inpatient setting. The commenters
consequently requested clarification as to how the standard can be used
in an inpatient setting. Some of the commenters noted that for
inpatient settings, hospitals typically relied on their own formularies
for performing the types of checks specified. Another commenter
requested clarification whether the correct content exchange standard
was National Council for Prescription Drug Programs (NCPDP) Formulary
and Benefits Standard version 1.0 and that if it was, the commenter
recommended its adoption. Another commenter noted that some State
Medicaid formularies are not yet available via nationwide e-prescribing
networks and recommended that ONC encourage the implementation of State
Medicaid formularies within the NCPDP Formulary and Benefits Standard
via a nationwide e-prescribing network.
Response. We agree with those commenters who identified the
inconsistency of applying the Formulary and Benefits standard to the
inpatient setting. Because the CMS proposed meaningful use objectives
applied to both eligible professionals and eligible hospitals, we did
not make the distinction as to when a Complete EHR or EHR Module would
need to include the Formulary and Benefits standard. However, in light
of these comments and to support the final meaningful use measure, we
have determined that it would be appropriate to adopt a more general
certification criterion that would be applicable to both Complete EHRs
and EHR Modules designed for ambulatory and inpatient settings.
Accordingly, we have removed any reference to a particular standard
because an eligible professional or eligible hospital that does not
have external access to a drug formulary would be able to satisfy this
meaningful use measure by checking an internally managed drug
formulary. Although the Formulary and Benefits standard is no longer
required as a condition of certification, we note that eligible
professionals who seek to comply with the electronic prescribing
requirements associated with Medicare Part D eligible individuals will
need to use this standard as they do today. Additionally, we do not
agree that it is within the scope of this rulemaking to address State
Medicaid Agencies' participation in nationwide e-prescribing networks.
Comments. Many commenters noted that the drug-formulary requirement
should not apply to Complete EHRs and EHR Modules designed for an
inpatient setting because there was no proposed requirement for
meaningful use Stage 1 for eligible hospitals to electronically
prescribe. Many of the commenters recommended removing this as a
requirement for eligible hospitals while retaining it with the criteria
for eligible professionals. A few commenters specifically recommended
adding it to the criterion for electronic prescribing. Several
commenters recommended that if the requirement were kept for hospitals
it should be written as a separate criterion to address the query of a
hospital's drug formulary during the order entry process and not the
NCPDP Formulary and Benefits standard. A commenter stated that current
industry practice among vendors of EHR technology is to provide a
``generic'' national formulary rather than the formulary for a
particular plan. The commenter recommended that the functionality
require that a user actually perform an eligibility check before access
is provided and, in response to that check, the functionality show the
correct formulary and benefits information, rather than just generic
data.
Response. We believe that our discussion above regarding the
removal of the standard associated with this certification criterion
addresses many of the concerns raised by commenters. However, we
disagree with the suggestion that Complete EHRs and EHR Modules
designed for an inpatient setting should not be required to include
this capability. This capability is required to be enabled for the

[[Page 44603]]

purposes of meeting the meaningful use Stage 1 measure. Consistent with
the final meaningful use Stage 1 objectives which separated drug-drug
and drug-allergy checks from drug-formulary checks, we have separated
out these capabilities into two different certification criteria.
Comments. A commenter stated a concern that this criterion,
combined with future meaningful use requirements, will shift providers'
focus from prescribing the best drug for the patient to prescribing
what is covered by the patient's insurance plan or generic brands.
Another commenter stated that adding formulary checks to the workload
of physicians will decrease physicians' efficiency and increase their
costs.
Response. In this rule, the Secretary is completing the adoption of
the initial set of standards, implementation specifications, and
certification criteria for the certification of Complete EHRs and EHR
modules. The certification criteria ensure that Certified EHR
Technology includes certain capabilities. The extent to which health
care providers must use those capabilities and how they integrate EHR
technology into their practice falls outside the scope of this rule. We
therefore do not believe that these concerns are within the scope of
this rulemaking.
Comment. A commenter recommended that ``drug-test checks'' should
be added. The commenter stated that many drugs require some form of
laboratory testing to ensure that drugs are prescribed appropriately.
The commenter stated, for example, that an anticoagulant medication
should not be prescribed unless there is a test result on record that
shows that giving this drug would not cause harm.
Response. Presently, drug-test checking is not a required
capability for eligible professionals and eligible hospitals to use in
order to successfully meet the requirements of meaningful use Stage 1.
Accordingly, we do not believe that it would be appropriate to require
Certified EHR Technology to be capable of performing drug-test checks
as a condition of certification at the present time.
Section 170.302(b)--Maintain Up-To-Date Problem List

------------------------------------------------------------------------
Meaningful use stage 1 Meaningful use Certification
objective stage 1 measure criterion
------------------------------------------------------------------------
Maintain an up-to-date problem More than 80% of Interim Final Rule
list of current and active all unique Text:
diagnoses. patients seen by Maintain up-to-date
the EP or problem list. Enable
admitted to the a user to
eligible electronically
hospital's or record, modify, and
CAH's inpatient retrieve a patient's
or emergency problem list for
department (POS longitudinal care in
21 or 23) have accordance with:
at least one (1) The standard
entry or an specified in Sec.
indication that 170.205(a)(2)(i)(A);
no problems are or
known for the (2) At a minimum, the
patient recorded version of the
as structured standard specified
data. in Sec.
170.205(a)(2)(i)(B).
Final Rule Text: Sec.
170.302(c).
Final rule text
remains the same as
Interim Final Rule
text, except for
references to
adopted standards,
which have been
changed.
------------------------------------------------------------------------

Comments. Several commenters expressed concerns about the use of
ICD-9-CM because it is primarily used for billing and administrative
purposes and may not accurately represent the true clinical meaning of
a problem or condition when it is documented at the point of care. One
commenter stated a concern that the problem list standards do not allow
for capturing of free text that health care providers use when an
appropriate code is in neither SNOMED-CT[supreg] nor ICD-9-CM.
Response. The comments are correct in that ICD-9-CM is primarily
used for billing and administrative purposes. SNOMED-CT[supreg] is
offered as an alternative standard that will support more clinical
descriptions of patient problems or conditions. We believe that with
the adoption of both SNOMED-CT[supreg] and ICD-9-CM, healthcare
providers should have adequate coverage for patient diagnoses and
conditions. We are discouraging the use of free text for documenting
problem lists since this will limit the usefulness of problem lists for
clinical reminders, decision support and other patient safety and
quality reporting.
Comments. Several commenters recommended that only SNOMED-
CT[supreg] be adopted, or alternatively, that we expressly indicate an
intention to move away from ICD-9CM and ICD-10 in the future. Another
commenter recommended against the adoption of SNOMED-CT[supreg] because
the commenter felt that our adoption of SNOMED-CT[supreg] would require
eligible professionals and eligible hospitals to use both ICD-9-CM and
SNOMED-CT[supreg]. One commenter recommended that a publicly vetted and
HHS approved standard mapping between ICD-9-CM and SNOMED CT[supreg]
should be made available at the public's expense.
Response. We agree conceptually that a single standard for clinical
information would be desirable in the long term. However, presently
both ICD-9-CM and SNOMED-CT[supreg] are used by EHR technology to code
clinical information, and adopting both would provide users with
additional flexibility. Moreover, we anticipate that as meaningful use
objectives and measures evolve over time, we will receive additional
public input and experience related to these standards and may
eventually be able to adopt only one standard.
Comments. A few commenters asked for clarification as to whether
SNOMED-CT[supreg] or ICD-9CM codes needed to be included within
Certified EHR Technology or if these standards were only necessary when
electronic health information is exchanged. Some of these commenters
also requested that we permit any coding system to be used as long as
it can be mapped to the appropriate format when electronic health
information is to be exchanged.
Response. As previously discussed, meaningful use requirements will
typically specify whether an adopted standard will have to be used
among components of a business organization or solely for the
electronic exchange of health information with other legal entities.
The measure for this final meaningful use objective provides that
entries be recorded as structured data. The certification criterion
specifies that ICD-9CM or SNOMED-CT[supreg] are the code sets which
must be included in Certified EHR Technology, and are therefore the
code sets that would be used to record entries as structured data.

[[Page 44604]]

Comments. A few commenters recommended the removal of
``longitudinal care'' in the certification criterion. These commenters
cited our clarification in the preamble that by longitudinal care we
meant ``over multiple office visits.'' These commenters questioned how
this language would be applicable to an inpatient setting since
patients are typically treated for acute episodes and not over multiple
office visits.
Response. The reference to longitudinal care is intended to convey
that the problem list must be comprehensive in the sense that it must
be capable of including entries provided over an extended period of
time. Consequently, for Complete EHRs and EHR Modules to be certified
for an ambulatory setting, they will need to be designed to enable the
user to electronically record, modify, and retrieve a patient's problem
list over multiple encounters. For an inpatient setting, they will need
to enable the user to electronically record, modify, and retrieve a
patient's problem list for the duration of an entire hospitalization.
This clarification was also requested in relation to the medication
list and medication allergy list certification criteria and we have not
repeated our response. As a result, we have retained ``longitudinal
care'' in each certification criterion where the term is referenced and
only make this clarification once.
Comment. A commenter suggested that we include a reasonable
expectation of what constitutes ``up-to-date'' in the reference to
``up-to-date'' problem list.
Response. We referred this comment to CMS, and it is addressed in
the final rule on the Medicare and Medicaid EHR Incentive Programs.
Section 170.302(c)--Maintain Active Medication List

Comments. A few commenters agreed with the certification criterion.
One commenter requested that we provide more clarity on the use of term
``retrieve.'' The commenter questioned whether we intended to use the
word ``retrieve'' in the certification criterion to mean solely the
retrieval of information available to Certified EHR Technology or if we
intended for it to also include the interactive retrieval of medication
list information from external sources. The commenter suggested we
clarify that ``retrieve'' meant retrieval of only information
internally available to Certified EHR Technology. Other commenters,
similar to their comments on the problem list certification criterion,
stated that there needed to be more clarity with respect to how the
reference to ``longitudinal care'' applied to a Complete EHR or EHR
Module used by an eligible hospital.
Response. We clarify that for this certification criterion, and all
other certification criteria, the term ``retrieve'' means the retrieval
of information directly stored and managed by Certified EHR Technology
and that it does not mean the retrieval of information from external
sources, unless explicitly stated otherwise. We also take this
opportunity, in the context of our response regarding ``longitudinal
care'' above, to clarify that ``medication history'' is intended to
include a record of prior modifications to a patient's medications.
Comment. A commenter stated that there needs to be more clarity
with respect to whether an EHR Module must maintain a list of all
active medications or if a specialty system, such as a cardiology
system, could maintain a list of medications specific to its specialty
use and provide the list to the enterprise EHR.
Response. If an EHR Module developer seeks to have its ``medication
list EHR Module'' certified, the EHR Module must provide the
capabilities specified by the certification criterion. We do not intend
to limit how the EHR Module could appropriately provide these
capabilities (i.e., whether the EHR Module must itself enable the user
to electronically record, modify, and retrieve a patient's active
medication list for longitudinal care, or whether the EHR Module could
be designed to provide those capabilities through its interaction with
a device or devices at the enterprise level).
Comment. One comment stated that this criterion should include a
provision to include the ability to transmit this information to public
health entities as required by law.
Response. Nothing we adopt in this final rule precludes such a
capability from being included in a Complete EHR or EHR Module. That is
not, however, currently a necessary requirement for certification.
Comments. One commenter stated that it would need to perform
extensive reprogramming to accommodate the standard we adopted if it
meant modifying underlying medication databases. This commenter
suggested that this standard as it applied to the maintenance of
medication lists be deferred. Along those lines, a couple of commenters
stated that more clarification was needed with respect to whether
RxNorm identifiers needed to be stored internally within Certified EHR
Technology or only needed to be used upon the electronic exchange of
health information. Other commenters expressly stated that the mapping
of the vocabulary be limited to instances where the electronic exchange
of health information would take place.
Response. We understand these commenters' concerns and agree that
it would be premature to require the use of the adopted standard in
this context. In that regard, we seek to clarify for commenters our
intention, which was solely to associate this adopted standard (as some
commenters suggested) with the certification criteria that require the
capability to electronically exchange health information. We recognize
that continuing to associate this standard with the adopted
certification criterion could potentially impose a significant burden
on the industry, which we did not intend. Accordingly, we have removed
from this certification criterion the requirement to use this standard.
We discuss our response to comments on the standard itself in the
context of the patient summary record certification criterion.

[[Page 44605]]

Section 170.302(d)--Maintain Active Medication Allergy List

Comments. Much like the prior certification criterion, many
commenters signaled their support for this certification criterion.
Other commenters raised the same points related to this certification
criterion as they did for the medication list certification criterion.
Response. We believe our responses to the problem list and
medication list certification criteria are applicable to these repeated
comments.
Comments. Many commenters suggested that non-medication allergies
be added to this certification criterion. A few commenters stated that
it could jeopardize patient safety if not all allergens were included
in Certified EHR Technology.
Response. Patient safety is one of HHS's top priorities. At the
present time, the final meaningful use objective and measure focus on
medication allergies. Accordingly, we have adopted a certification
criterion to support this objective and measure. We would like to
reiterate, however, that a certification criterion sets the floor not
the ceiling for the capabilities Certified EHR Technology must include.
We encourage Complete EHR and EHR Module developers to provide more
comprehensive capabilities than those currently required for achieving
certification.
Section 170.302(e)--Record and Chart Vital Signs

------------------------------------------------------------------------
Meaningful use Stage 1 Meaningful use Stage
objective 1 measure Certification criterion
------------------------------------------------------------------------
Record and chart For more than 50% of Interim Final Rule Text:
changes in vital all unique patients (1)Vital signs. Enable a
signs: age 2 and over seen user to electronically
Height by the EP or record, modify, and
Weight admitted to eligible retrieve a patient's
Blood hospital's or CAH's vital signs including,
pressure inpatient or at a minimum, the
Calculate and emergency department height, weight, blood
display BMI (POS 21 or 23), pressure, temperature,
Plot and height, weight and and pulse.
display growth charts blood pressure are (2)Calculate body mass
for children 2-20 recorded as index. Automatically
years, including BMI. structured data. calculate and display
body mass index (BMI)
based on a patient's
height and weight.
(3) Plot and display
growth charts. Plot and
electronically display,
upon request, growth
charts for patients 2-20
years old.
Final Rule Text: Sec.
170.302(f).
(1)Vital signs. Enable a
user to electronically
record, modify, and
retrieve a patient's
vital signs including,
at a minimum, height,
weight, and blood
pressure.
(2) Unchanged
(3) Unchanged
------------------------------------------------------------------------

Comment. One commenter noted that the units of measurement should
be specified in the EHR with regards to vital signs. For example that
height should be specified in inches or centimeters.
Response. We do not believe that this level of specificity is
necessary. We expect that Complete EHR and EHR Module developers will
include the units of measure that their customers believe are necessary
to meet their needs, which in many cases will include those that
patients routinely request. We also expect that many Complete EHR and
EHR Module developers will offer both metric units and U.S. units of
measurement, as a standard business practice.
Comments. In what appeared to be a reaction to the proposed
meaningful use objective and measure, some commenters requested that we
remove BMI as part of the certification criterion for Complete EHR or
EHR Modules designed for an inpatient setting. The rationale provided
was that acute care providers would not be required to track BMI.
Response. While we can understand these commenters' concern, we
believe that BMI is a simple mathematical calculation that Certified
EHR Technology should be capable of performing regardless of the
setting for which it is designed.
Comment. One commenter recommended that BMI and age components
should be used to create an alert when an unhealthy BMI is indicated
for a patient and that Certified EHR Technology should record whether
the patient was informed of the unhealthy BMI status.
Response. We believe that this recommendation is overly specific,
is more germane to meaningful use, and exceeds the type of capability
we believe should be specified as a condition of certification.
Comments. A few commenters noted this certification criterion
applies more directly to specialties that predominantly treat children.
For other specialties, this criterion would add unnecessary cost and
complexity to many HIT products that they would use. Many commenters
suggested that a growth chart component should not be required for EHR
technology designed for an inpatient setting, as it is not feasible to
track this data in a meaningful way over a long enough period of time
in an inpatient setting (which is typically of a short and

[[Page 44606]]

infrequent duration). A couple of commenters suggested that non-
traditional forms of growth charts should be accepted. One commenter
suggested that the certification criterion establish a baseline, but
should not limit the expansion of this capability to other ages. Other
commenters made specific suggestions for different age ranges, such as
including children under the age of two and lowering the upper age to
ages less than 20 years old (e.g., 18).
Response. As we stated above with respect to the calculation of
BMI, we believe that Certified EHR Technology should be capable of
performing this capability regardless of the setting for which it is
designed. Moreover, with respect to whether growth charts should be
applicable to Complete EHRs and EHR Modules designed for an inpatient
setting, we remind commenters that children's hospitals qualify as
eligible hospitals under the Medicaid EHR incentive program and will
also need to demonstrate meaningful use of Certified EHR Technology. We
do not preclude Complete EHR and EHR Module developers from designing
novel approaches to displaying growth charts. Finally, we concur with
the commenter that suggested this certification criterion should be a
baseline. We reiterate that this certification criterion establishes a
floor, not a ceiling, and we encourage Complete EHR and EHR Module
developers to include additional functionality where it will enhance
the quality of care that eligible professionals and eligible hospitals
can provide.
Comments. Similar to the comments above, many commenters suggested
the growth chart requirement should include children under age 2. The
charting would then include: weight, length, pulse oximetry, head
circumference, and blood pressure (with percentiles based on age and
weight).
Response. For Stage 1, the related meaningful use objective
addresses ages 2-20. In order to remain consistent with and support
this objective, we do not believe that it is necessary at this time to
require a capability for charting any additional ages as a condition of
certification.
Comment. One commenter requested that we clarify whether ``plot and
electronically display'' means to plot height, weight, and BMI over
time or against national norms.
Response. We clarify that we expect a growth chart to plot the
height, weight, and BMI over time, as compared to national norms. While
the regulation text does not specifically require comparison to
national norms, we understand that this type of information is
typically provided along with the growth chart itself to provide
greater relevance and meaning for the growth charts. We encourage
Complete EHR and EHR Module developers to include this feature.
Comment. A commenter suggested that SNOMED-CT[supreg] be used for
designation of BMI.
Response. Although we agree that SNOMED-CT[supreg] could be used to
code BMI, we only require that Certified EHR Technology be capable of
calculating BMI. We do not believe that it is necessary, as a condition
of certification, to specify how BMI should be coded. That being said,
we do not preclude the use of SNOMED-CT[supreg] to code BMI.
Comment. One commenter suggested that the certification criterion
should be better aligned with the final meaningful use objective and
measure. The commenter noted that the criterion includes temperature
and pulse, which is not included in the meaningful use objective and
measure.
Response. We agree with the comment and have removed temperature
and pulse from the certification criterion.
Section 170.302(f)--Smoking Status

Comments. Several commenters stated that the smoking status
certification criterion was overly prescriptive because it specified
certain status variables. These commenters agreed that recording
smoking status is crucial to health improvement efforts, but contended
that mandating certain fields was the wrong approach. Many of these
commenters stated that they were unaware of defined industry standard
value set for smoking terminology and other suggested that our
reference to specific types of smokers be removed. Others asked whether
these variables were examples or the only responses allowed. A few
commenters agreed with this certification criterion as reasonable and
appropriate because it would provide value for both clinical care and
public health. Commenters recommended that besides what we had
specified, the certification criterion should also reference packs per
day history information, secondhand smoke exposure, and alcohol
consumption information. Other commenters recommended that the
certification criterion be changed to reflect tobacco use rather than
smoking.
Response. We have adopted this certification criterion to fully
support the final meaningful use objective and measure, which in
response to comments has been revised to further clarify the purpose of
the objective and measure. We therefore disagree with those commenters
who stated that this certification criterion is too prescriptive.
Concurring with CMS, we believe that the fields associated with this
measure should mirror those expressed in the Centers for Disease
Control and Prevention, National Center for Health Statistics, National
Health Interview Survey related to smoking status recodes.\2\
Accordingly, the final certification criterion further specifies and
slightly broadens the smoking statuses we expect Certified EHR
Technology to be capable of recording. Generally speaking, we
understand that a ``current every day smoker'' or ``current some day
smoker'' is an individual who has smoked at least 100 cigarettes during
his/her lifetime and still

[[Page 44607]]

regularly smokes everyday or periodically, yet consistently; a ``former
smoker'' would be an individual who has smoked at least 100 cigarettes
during his/her lifetime but does not currently smoke; and a ``never
smoker'' would be an individual who has not smoked 100 or more
cigarettes during his/her lifetime.\3\ The other two statuses (smoker,
current status unknown; and unknown if ever smoked) would be available
if an individual's smoking status is ambiguous. The status ``smoker,
current status unknown'' would apply to individuals who were known to
have smoked at least 100 cigarettes in the past, but their whether they
currently still smoke is unknown. The last status of ``unknown if ever
smoked'' is self-explanatory.
---------------------------------------------------------------------------

\2\ Smoking status recodes: http://www.cdc.gov/nchs/nhis/tobacco/tobacco_recodes.htm.
\3\ ftp://ftp.cdc.gov/pub/Health_Statistics/NCHS/datasets/DATA2010/Focusarea27/O2701a.pdf.
---------------------------------------------------------------------------

Section 170.302(g)--Incorporate Laboratory Test Results

Comments on 170.302(g)(1)
Comments. A few commenters suggested that we specify in the
regulation that the reference to receiving clinical laboratory test
results in a ``structured format'' means in HL7 version 2.3.1 format.
These commenters further recommended that we refer to HL7 version 2.3.1
within the certification criterion. These commenters stated that many
Complete EHR and EHR Module developers already use HL7 2.3.1 and that
adopting it as a standard would spur industry-wide adoption and also
set the stage for driving adoption of future HL7 standards, like HL7
2.5.1, in the later stages of meaningful use. A commenter in support of
including HL7 2.3.1 stated that it was concerned that if we did not
specify a standard for this requirement that there could be confusion
regarding which version of the standard should be used, and that
laboratories would have to continue to support multiple standards.
Another commenter also noted that we did not specify a standard format
for the laboratory results that Certified EHR Technology must be
capable of receiving. This commenter, however, stated that many EHRs
are compliant with HL7 2.5.1 for the purposes of receiving laboratory
results. The commenter also recommended that we apply this
certification criterion differently for ambulatory and inpatient
settings by requiring that Complete EHRs and EHR Modules designed for
an ambulatory setting be required to receive HL7 2.5.1 formatted
laboratory test results and those designed for an inpatient setting be
required to receive HL7 2.3.1 formatted laboratory test results. One
commenter suggested that our objectives could be better supported if we
stated that in this certification criterion a requirement that
laboratory results must be received electronically using HL7
transactions with implementation guidance.
Response. While we understand the intent of these commenters'
suggestions, we do not believe that it is within the scope of this rule
to dictate the standard by which laboratories transmit test results.
The scope of this rule is the adoption of certification criteria that
specify required capabilities of Certified EHR Technology (in this
case, receiving laboratory information in structured format) and not,
in this instance, specifying the standard by which laboratories must
transmit test results.
Comment. A commenter requested that we clarify how this
certification criterion is applicable to hospital settings. The
commenter asked whether we intended for the capability of receiving
laboratory test results to include results obtained during a patient's
stay at the hospital or if we meant to also include the receipt of
laboratory test results from other time periods. They suggested
requiring only those laboratory test results obtained during the
patient stay.
Response. For the purposes of demonstrating compliance with this
certification criterion, we do not specify the contexts (e.g., a
patient stay) under which laboratory test results are received. Rather,
consistent with the meaningful use objective and measure and the
capabilities required by this certification criterion, we specify that
when laboratory test results are received in structured format by
Certified EHR Technology, that the results can be incorporated.
Comment. One commenter requested that we clarify whether the
structured data requirement applies to all laboratories (including
reference labs, hospital labs, physician office labs, and physicians
performing their own lab tests).
Response. This certification criterion requires Complete EHRs and
EHR Modules to provide the capability to receive clinical laboratory
test results in a structured format as a condition of certification. It
does not speak to how laboratories must send the test results.

[[Page 44608]]

Comments on 170.302(g)(2)
Comments. Some commenters requested clarification on this specific
capability within the certification criterion regarding what needed to
be displayed in the context of LOINC codes. These commenters suggested
that we not require the display of the actual LOINC code, but the
description associated with the LOINC code. A commenter suggested that
we identify a subset of common LOINC codes instead of requiring that
tens of thousands of LOINC codes be supported for the purposes of
certification. Other commenters suggested that we offer guidance in the
form of a ``starter set'' of LOINC codes to encourage the use of the
standard. One commenter requested that we confirm its understanding of
this specific part of the certification criterion, which is that
Certified EHR Technology must demonstrate the capability to import
LOINC coded results from an external source. Finally, one commenter
noted that the heading for the standard at Sec. 170.205(a)(2)(iii)
should just refer to ``laboratory test results'' and not ``laboratory
orders and results.''
Response. We clarify that we do not expect Certified EHR Technology
to natively (or internally) support LOINC in its entirety, which is why
we do not believe that it is necessary to specify a subset of common
LOINC codes. Given the diverse comments and requests for clarification
on this specific aspect of the certification criterion, we agree with
commenters that we should not require a LOINC code that has been
received, to then be displayed. Accordingly, we have decided to remove
this requirement from the certification criterion. We do, however, wish
to further clarify our current approach to Certified EHR Technology's
use of LOINC codes. Presently, we expect Certified EHR Technology to be
able to reuse a LOINC code once it has been received and is accessible
to Certified EHR Technology. We do not expect, as we mention above,
that Certified EHR Technology will have to crosswalk or map internal or
local codes to LOINC codes. This clarification is applicable to the
standard that we have adopted regarding LOINC codes now specified at
Sec. 170.207. This response is applicable to similar comments we
received on other certification criteria that also referenced the use
of LOINC codes. Finally, we agree with the commenter who suggested that
we revise the heading of the standard at Sec. 170.205(a)(2)(iii). We
have done this as part of the overall restructuring of the regulation
text.
Comments on 170.302(g)(3)
Comments. Some commenters agreed with the capability specified in
170.302(g)(3). One noted a concern that modifications to either a
certified Complete EHR or certified EHR Module could potentially result
in the failure of Certified EHR Technology to display the test report
information as required by the regulations and, thereby, put the
laboratory in technical violation of the CLIA regulations. These
commenters reasoned that because a Complete EHR or EHR Module must be
tested and certified to be in compliance with 42 CFR 493.1291(c)(1)
through (7) that certification should replace any requirement for the
laboratory to confirm that the information has been properly
transmitted and meets the CLIA requirements. These commenters also
asserted that a laboratory should be relieved of any further regulatory
responsibility under 42 CFR 493.1291(c)(1) through (7) for the display
of the required report information to the physician or subsequent
viewers of the information if the Certified EHR Technology has been
implemented by an eligible professional or eligible hospital. One
commenter reiterated the point by stating that because Certified EHR
Technology would be required to display the required CLIA report
elements, laboratories should not be unfairly held accountable for any
elements that may be removed or altered by other parties from the test
report before received by the physician.
Response. While we can understand the concern expressed by these
commenters, we reiterate that the scope of our authority under this
final rule only applies to capabilities that Certified EHR Technology
must include. As a result, we cannot provide the regulatory relief that
these commenters seek.
Comments on 170.302(g)(4)
Comments. A couple of commenters questioned whether we intended for
the ``updates'' to be manual updates of electronic records. If that
were true, some commenters were concerned that would create workflow
problems and reduce the availability of results. Other commenters
suggested that either the user be able to create an additional record,
rather than be permitted to change the ``official'' record or that an
adequate audit trail be preserved of the existing data and any updates,
since an update may result in disparities with the official record of
test results. These commenters wanted to ensure that the laboratory's
record would be the same as the record maintained in the EHR. One
commenter stated that paragraph (g)(4) could imply process and system
behavior that we did not intend to require. The commenter stated that
it is common practice in a hospital setting for lab results to be
transmitted in high volume from a lab system to an EHR and made
available for review to the clinician through the EHR, without a need
for a user to review each transaction before updating the EHR to make
the results available. Another commenter made a similar point and
questioned whether an ``update'' meant manual intervention, which they
stated would be impracticable in a hospital setting. One commenter
stated that most EHR technology already links orders to lab results in
an established way. The commenter also indicated that the certification
criterion we adopted requires changes to a process that most EHR
developers have already implemented and introduces inefficiencies for
both EHR developers and health care providers.
Response. We appreciate the issues raised by commenters on this
specific capability and have revised this part of the certification
criterion to more clearly express our expectation for Certified EHR
Technology and to be responsive to and consistent with commenters'
suggestions. We intended for an update to mean, as indicated by the
meaningful use objective and measures, that a laboratory test result
would be incorporated in Certified EHR Technology with the originating
laboratory order or with a patient's record in any one of the methods
specified. Accordingly we have revised this specific capability to more
clearly reflect our intent. We believe this addresses commenters'
concerns and requests for clarification and would permit batches of
laboratory test results to be electronically linked to laboratory
orders or patient records without manual intervention.
Comments. Some commenters noted that small and medium size
practices have had a difficult time working with commercial laboratory
vendors to provide interfaces from which they can receive lab test
results. These commenters noted that laboratory vendors typically
charge too much for their services and do not prioritize establishing
connections with small and medium size practices because they do not
have the same volume of laboratory referrals as large practices.
Response. This certification criterion requires as a condition of
certification that Certified EHR Technology be capable of supporting
electronic laboratory interfaces. We understand the

[[Page 44609]]

concerns raised by commenters pertaining to the difficulty of certain
practices being able to obtain laboratory interfaces and note that the
meaningful use Stage 1 measure associated with this certification
criterion is included in the ``menu set'' specified by CMS which we
believe should help assuage some commenters' concerns. We do not
believe that the ability of a practice (regardless of size) to obtain
an interface or other type of connection is an issue that is within the
scope of this final rule to address.
Comment. One commenter recommended that we revise this
certification criterion to require that laboratory domain expertise be
exhibited when laboratory information is displayed. The commenter
further elaborated by stating that laboratory results are not
homogeneous, and that specific laboratory domain expertise is necessary
to design the ways in which the data associated with certain laboratory
results (e.g., microbiology, molecular pathology) are displayed in EHR
systems to ensure appropriate presentation and interpretation.
Response. With the exception of displaying the required elements
specified at 42 CFR 493.1291(c)(1) through (7), we do not require as a
condition of certification any additional display requirements.
Accordingly, we do not preclude Complete EHR and EHR Module developers
from designing more specific displays of laboratory results that may
need to be displayed in a more complex fashion.
Comment. One commenter requested that we clarify that Certified EHR
Technology did not need to enable the EHR Technology user to receive
voluminous raw or pre-final-report lab data, and further, that not
providing this capability would not disqualify a Complete EHR or EHR
Module from becoming certified.
Response. Enabling a Complete EHR or EHR Module to receive ``raw or
pre-final-report lab data'' is not required under this or any other
adopted certification criterion.
Comment. One commenter suggested that we modify this certification
criterion to require transmission of cancer related lab tests and
results to cancer registries as required by law.
Response. Because this certification criterion is about
incorporating lab test results in Complete EHRs and EHR Modules and
does not require any electronic transmissions, we do not believe that
this is an appropriate requirement to consider.
Section 170.302(h)--Generate Patient Lists

Comments. Several commenters requested clarification regarding the
set of variables that should be included in the demographic information
for the patient lists. Some of these commenters suggested that the
gender, race, ethnicity and preferred language of the patient should be
included in this data set. One commenter suggested that the final rule
should explicitly adopt and incorporate the recommendations of a report
published by the Institute of Medicine in mid-2009 entitled, ``Race,
Ethnicity and Language Data: Standardization for Health Care Quality
Improvement.''
Response. We appreciate the commenters' suggestions, and we have
used them to clarify this certification criterion. It was our intention
that Certified EHR Technology would be able to leverage the
information, specifically the structured data it has available to it,
to assist eligible professionals and eligible hospitals to generate
patient lists. We have clarified this certification criterion to
express this intent. Accordingly, we expect that Certified EHR
Technology will be able to generate patient lists according to certain
data elements for which structured data will be available: Medical
problems; medications; demographics; and laboratory test results. While
we respect the work completed by the Institute of Medicine, we do not
believe that the public has had an adequate opportunity to consider its
recommendations related to demographics in the context of
certification, and we are therefore not including them as a condition
of certification at this time. We encourage the HIT Standards Committee
to consider this report as it recommends standards to the National
Coordinator.
Comments. Several commenters requested further clarification
regarding the meaning of ``patient's clinical information.'' Other
commenters stated that this phrase was too vague and was not included
as part of the proposed meaningful use objective or measure and should
therefore be removed. Some commenters requested further definition of
the term ``specific conditions,'' particularly to clarify whether this
term refers to problems and diagnoses. Clarification was also requested
regarding whether this information includes: a patient summary; the
patient's entire medical history; and patient encounter notes. One
commenter recommended that we clarify how the lists must be structured
and suggested that we specify time periods for patient histories. One
commenter requested clarification of the term ``output,'' and suggested
that it should mean to produce a list for internal use and that it does
not refer to exporting the patient list to a system or destination
external to the office of an eligible professional.
Response. We appreciate the concerns raised by these commenters and
after further consideration agree that the terms referenced by
commenters could be interpreted in multiple ways. Accordingly we have
removed ``patient's clinical information'' and ``specific conditions''
from the certification criterion, and have reframed the certification
criterion to more directly

[[Page 44610]]

align with the meaningful use measure by changing ``output'' to
``generate.'' We sought to clarify that we intended that Certified EHR
technology would be capable of electronically producing or
``generating'' patient lists for an eligible professional or eligible
hospital's subsequent use. We do not require as a condition of
certification that time periods be associated with a patient list, but
presumably time (i.e., the age of the information) could be one factor
an eligible professional or eligible hospital could also use to sort
their lists (e.g., patients with XYZ problem recorded in the past 3
months). We believe that these revisions make this certification
criterion clearer while addressing these commenters' concerns.
Section 170.302(i)--Report Quality Measures

------------------------------------------------------------------------
Meaningful use Stage 1 Meaningful use Certification
objective Stage 1 measure criterion
------------------------------------------------------------------------
Eligible Professionals: Report For 2011, provide Interim Final Rule
ambulatory clinical quality aggregate Text:
measures to CMS or the States. numerator, (1) Display.
denominator, and Calculate and
exclusions electronically
through display quality
attestation as measures as
discussed in specified by CMS or
section II(A)(3) States.
of [the Medicare (2) Submission.
and Medicaid EHR Enable a user to
Incentive electronically
Programs final submit calculated
rule]. quality measures in
accordance with the
standard and
implementation
specifications
specified in Sec.
170.205(e).
Eligible Hospitals and CAHs: For 2012, Final Rule Text: Sec.
Report hospital clinical electronically 170.304(j).
quality measures to CMS or submit the (1) Calculate.
the States. clinical quality (i) Electronically
measures as calculate all of the
discussed in core clinical
section II(A)(3) measures specified
of [the Medicare by CMS for eligible
and Medicaid EHR professionals.
Incentive (ii) Electronically
Programs final calculate, at a
rule]. minimum, three
clinical quality
measures specified
by CMS for eligible
professionals, in
addition to those
clinical quality
measures specified
in paragraph (1)(i).
(2) Submission.
Enable a user to
electronically
submit calculated
clinical quality
measures in
accordance with
the standard and
implementation
specifications
specified in Sec.
170.205(f).
Sec. 170.306(i).
(1) Calculate.
Electronically
calculate all of
the clinical
quality measures
specified by CMS
for eligible
hospitals and
critical access
hospitals.
(2) Submission.
Enable a user to
electronically
submit calculated
clinical quality
measures in
accordance with
the standard and
implementation
specifications
specified in Sec.
170.205(f).
------------------------------------------------------------------------

Comments. Many commenters stated that the Physician Quality
Reporting Initiative (PQRI) 2008 Registry XML specifications apply only
in the context of eligible professionals. Some of these commenters went
on to state that hospitals are not familiar with PQRI and have been
submitting quality measurement data to CMS under a separate program. A
few commenters recommended that this standard requirement be removed
while several others stated we should adopt both Quality Reporting
Document Architecture (QRDA) and the PQRI XML Registry specification in
this rulemaking and move to a single standard in the next rulemaking.
Other commenters recommended that QRDA not be adopted in this
rulemaking. Several commenters suggested that an implementation
specification for eligible hospitals be created if we intend to
continue to require that quality measure be reported in the PQRI
Registry XML format. One commenter expressed a concern that if the PQRI
2008 Registry XML standard is maintained as the adopted standard that
there is a danger that the certification Complete EHR and EHR Module
developers obtain may become obsolete before Stage 1 has run its
course. Finally, a couple of commenters suggested that ONC consider
deferring the naming of a standard for submission of clinical quality
measures until Stage 2 and instead only require what is necessary to
support clinical quality measure submission in Stage 1.
Response. Many commenters misinterpreted our intent with respect to
the adoption of the PQRI 2008 Registry XML specification as the
standard for electronically submitting quality reporting data to CMS.
Presently, CMS requires the submission of aggregate, summary level data
for the purposes of meaningful use and not data at the patient-specific
level. It is our understanding that the PQRI 2008 Registry XML
specification is capable of serving as the ``envelope'' for aggregate,
summary level data. Accordingly, we do not believe that, as some
commenters suggested, an eligible hospital's familiarity with the PQRI
program is relevant to the adoption of this standard for this specified
purpose. Nor do we believe that a specific implementation of this
standard is necessary for hospital settings as the standard's purpose
and the type of data it will transmit to CMS will be the same--
aggregate, summary level data. Through recent discussions with CMS
since the publication of the Interim Final Rule we have determined that
the PQRI 2009 Registry XML specification, a more recent version of the
standards we adopted in the Interim Final Rule is a suitable
replacement for 2008 version, and accordingly, we have adopted the 2009
version in its place. We believe this revision should assuage some
commenters' concerns about the obsolescence of the adopted standard and
reduce concerns that a wholly different standard would be adopted in
the near future. If adopting a different standard for Certified EHR
Technology becomes necessary, we would do so only after engaging in
subsequent rulemaking.
Comments. A few commenters stated that many of the clinical quality
measures proposed by CMS do not have electronic specifications and
contended that it would be difficult for any vendor to have embedded
these measures in their EHR products in a timely manner. But, these
same commenters stated that when the specifications become available,
that HHS should ensure through the certification process that the
products are capable of generating accurate data. Many commenters
expressed concerns that the certification criterion was too vague or
too broad (because it implicitly referenced all of

[[Page 44611]]

the quality measures CMS had proposed). Some of the commenters
recommended that this certification criterion be removed, while others
recommended that it focus on a subset of measures in order to constrain
the amount of electronic measure specifications a Complete EHR or EHR
Module developer would need to address in order to be certified. At
least one of these latter commenters indicated that our adopted
certification criteria created uncertainty for Complete EHR and EHR
Module Developers. This commenter asked that we clarify what clinical
quality measures would need to be tested in order to satisfy this
certification criterion and if there would be a baseline for eligible
hospital measures as well as some identified core set of measures for
eligible professionals. Along these same lines, another commenter
recommended that EHR technology should be tested and certified only to
the clinical quality measures applicable to the medical specialties of
the eligible professionals that the EHR technology is intended to
support and to whom it is marketed. Other commenters expressed concerns
about timing and that a significant amount of effort would be required
to reprogram Complete EHRs and EHR Modules to capture, calculate, and
report the final meaningful use Stage 1 measures. Many commenters also
stated that the proposed quality measures are not yet ready for
automated reporting, that a significant amount of work is still
required by the measure developer community, and that the value sets
for these quality measures have not been validated. Several commenters
objected to the reference to ``States'' in the certification criterion
and recommended that it be removed. These commenters contended that the
certification criterion should be limited to the ``federal
requirements'' and further that it was unrealistic to expect Complete
EHR and EHR Module developers to also comply with 50 separate State
requirements as a condition of certification.
Response. We understand that CMS has worked to significantly
increase the availability of a number of electronic measure
specifications that are associated with specific clinical quality
measures. In light of the final approach CMS has taken with respect to
clinical quality measures for meaningful use Stage 1, we have revised
this certification to better align it with the Medicare and Medicaid
EHR Incentive Programs final rule requirements. We also agree with
those commenters that requested we explicitly focus the report of
clinical quality measures certification criterion, and the
certification criteria in general, on Federal requirements and have
removed the reference to ``or States'' in this certification criterion.
To better align this certification criterion with the final
approach to clinical quality measures in the Medicare and Medicaid EHR
Incentive Programs final rule, we have determined that it is no longer
sufficient to specify one general certification criterion for both
Complete EHRs and EHR Modules designed for either an ambulatory or
inpatient setting. Accordingly, the final rule in Sec. Sec. 170.304
and 170.306 will include a specific certification criterion for each
setting. Complete EHRs and EHR Modules designed for an ambulatory
setting will be required to be tested and certified as being compliant
with all 6 of the core (3 core and 3 alternate core) clinical quality
measures specified by CMS for eligible professionals (Section II(A)(3)
of the Medicare and Medicaid EHR Incentive Programs final rule).
Complete EHRs and EHR Modules designed for an ambulatory setting will
also be required to be tested and certified as being compliant with, at
a minimum, 3 of the additional clinical quality measures CMS has
identified for eligible professionals (Section II(A)(3)of the Medicare
and Medicaid EHR Incentive Programs final rule). We believe this
revision provides clarity and flexibility and reduces the potential
burden for Complete EHR and EHR Module developers (who may have been
unfamiliar with certain clinical quality measures because of the type
of eligible professional they serve) to become compliant with this
certification criterion. As a result, Complete EHR and EHR Module
developers for the ambulatory setting may provide Certified EHR
Technology with a certain level of variability in terms of clinical
quality measure capabilities. To provide further transparency for
potential eligible professionals regarding the clinical quality
measures to which a Complete EHR or EHR Module has been tested and
certified, we specified that an ONC-Authorized Testing and
Certification Body would need to report such information to the
National Coordinator, and further, that the Complete EHR or EHR Module
developer would need to make sure this information is available and
communicated to prospective purchasers as part of the Complete EHR or
EHR Module's certification.
Complete EHRs and EHR Modules designed for an inpatient setting
will be required to be tested and certified as being compliant with all
of the clinical quality measures specified by CMS (Section II(A)(3) of
the Medicare and Medicaid EHR Incentive Programs final rule) for
eligible hospitals. Again, we believe this revision provides greater
clarity and reduces the potential burden for Complete EHR and EHR
Module developers.
Comments. One commenter suggested that we separate the calculation
and the submission parts of this certification criterion into two
separate certification criteria.
Response. We disagree. We see no basis for separating these two
parts of this certification criterion into two separate certification
criteria. However, we believe that it is necessary to specify two
different certification criteria to account for the different clinical
quality measures that eligible professionals and eligible hospitals
will need to report. Accordingly, we have adopted separate
certification criteria for Complete EHRs and EHR Modules designed for
ambulatory and inpatient settings and referenced the respective quality
measures for each in the appropriate certification criterion.
Comments. One commenter suggested that all approved PQRI registries
be automatically certified as an EHR Module.
Response. We do not believe that it is prudent or appropriate to
automatically deem certain HIT as certified. That being said, if a PQRI
registry can adequately perform the capability specified by the
certification criterion, it could be certified as an EHR Module.
Comments. Several commenters stated that Certified EHR Technology
should be capable of collecting quality measurement data and
calculating results for reporting to avoid having eligible
professionals and eligible hospitals perform these processes manually.
These commenters also stated that Certified EHR Technology should be
capable of accurately and reliably reporting quality measurement data.
Some commenters recommended that a Complete EHR or EHR Module only be
required to be certified to existing e-measure specifications.
Response. We agree that the collection of clinical quality
measurement data and the calculation of results for submission to CMS
should be performed by Certified EHR Technology. We also agree that
Complete EHRs or EHR Modules should only be required to be tested and
certified to developed electronic measure specifications. This is why
CMS has only specified clinical quality measures for eligible
professionals and eligible hospitals in the Medicare and Medicaid EHR
Incentive Programs final rule for which electronic measure

[[Page 44612]]

specifications have been developed. Complete EHR and EHR Module
developers should follow these electronic measure specifications in
order to accurately calculate clinical quality measures.
Comments. Several commenters recommended that the certification
criterion should be revised to include the word ``accurately.''
Response. We expect that clinical quality measures would be
accurately calculated and do not see a need to specifically include the
word in the certification criterion.
Section 170.302(j)--Check Insurance Eligibility and Sec. 170.302(k)--
Submit Claims

Comments. Many commenters recommended that the certification
criteria for administrative transactions be removed because they
considered the administrative capabilities that we required to be
outside of the scope of an electronic health record and stated further
that their inclusion did not align with the HIT industry's common view
of what constituted EHR technology. A large number of commenters
conveyed specific challenges including: These functions are usually
handled by practice management systems which generally are separate
from an EHR, although on occasion some vendors include these
functionalities in their EHRs; practice management systems adoption is
already very high and requiring certification for these products would
be unnecessary and burdensome, given the wide variety and number of
vendors and significant potential for increasing costs for providers;
providers interested in achieving meaningful use would have to abandon
a working practice management system if their practice management
vendors were unwilling or unable to get certified; and many providers
currently use clearinghouses to convert paper claims into electronic
claims to submit to CMS and other payers. Several commenters
recommended retaining the administrative transactions certification
criteria because it would eventually reduce administrative costs across
the health care system. Many commenters requested that we clarify
several aspects of these certification criteria while some other
commenters noted that significant progress has been made in using
electronic eligibility inquires and claims transactions outside of an
EHR context. Those commenters expressed concern that the inclusion of
administrative transaction capability in this rule would create
confusion, ambiguity, and potentially duplicate efforts. A couple of
commenters noted that some payers do not accept electronic claims and
eligibility checks. One commenter expressly noted that including the
administrative functionalities would decrease innovation by creating a
large barrier to entry for EHR innovators. Finally, a couple of
commenters noted that health care providers would face significant
challenges in the transition to ASC X12N 5010 and ICD-10 and lost
productivity.
Response. In concert with CMS, we have considered commenters'
rationale for and against the inclusion of these certification
criteria. We have tried to summarize above several technical and
programmatic challenges commenters identified if administrative
transaction capability were included within the certification
requirements. Due to the removal of these objectives from the
meaningful use Stage 1 requirements, we do not believe that it would be
appropriate to continue to require, as a condition of certification,
that Complete EHRs and EHR Modules include these capabilities.
Accordingly, we have removed the adopted standards, implementation
specifications, and certification criteria related to these
administrative transactions from this final rule.
As CMS explains in more detail in the Medicare and Medicaid EHR
Incentive Programs final rule, the subsequent inclusion of
administrative simplification requirements as part of meaningful use
Stage 2 is an important long-term policy goal. Administrative
simplification can improve the efficiency and reduce unnecessary costs
in the health care system as a whole; the small percentage of paper
claims submitted represents a disproportionately high administrative
cost for health plans; the reconciliation of billing charges for
services not eligible for payment creates a significant burden for
providers, health plans, and most significantly, for patients.
Moreover, we believe that the integration of administrative and
clinical information systems is necessary to support effective
management and coordinated care in physician practices. For example,
the ability to: leverage clinical documentation in support of
appropriate charge capture (e.g., for preventive counseling, or
immunizations provided); link lists of patients needing clinical
reminders with patient contact information; stratify quality measures
by patient demographic factors (e.g., race/ethnicity) and insurer
status (e.g., Medicare beneficiaries).
Additionally, we believe that important benefits can be recognized
through the future adoption of administrative transactions standards
and certification criteria for Complete EHRs and EHR Modules. Through
the

[[Page 44613]]

use of EHR Modules, eligible professionals and eligible hospitals have
the opportunity to use practice management systems or clearinghouses
that provide the capability to conduct administrative transactions as
components of Certified EHR Technology. In that regard, we recognize
the concerns expressed by some commenters that the developers of some
practice management systems may not be prepared to seek certification
for these legacy systems in 2010 or 2011. We also acknowledge that the
required compliance date of January 1, 2012 for ASC X12N version 5010
transactions would further complicate the certification process
associated with meaningful use Stage 1. However, we believe that after
the ASC X12N version 5010 transition has occurred, and we approach the
October 1, 2013 compliance date for HIPAA covered entities to use ICD-
10, our decision to delay the adoption of administrative transactions
certification criteria will prove beneficial for the adoption of
Certified EHR Technology.
In order to meet upcoming administrative simplification deadlines,
most health care providers will have to upgrade their practice
management systems or implement new ones. This will provide an
important opportunity to align EHR technology capabilities and
standards for administrative transactions with the administrative
simplification provisions that the Affordable Care Act provides for
health plans and clearinghouses. Therefore, we intend to include for
adoption, administrative transactions standards and certification
criteria to support meaningful use Stage 2 rulemaking, and expect
health care providers and Complete EHR and EHR Module developers to
take this into consideration leading up to 2013.
Comments. Many commenters recommended that we remove the
implementation specification, CORE Phase 1 (CORE), which we previously
adopted. Several commenters noted that CORE is only useful if it has
also been adopted by health plans, and they explained that not all
health plans had adopted CORE. A few commenters expressed concern with
CORE stating that it adds requirements to the HIPAA Standard
Transactions and did not follow the work of the standards development
organization that maintains administrative transactions. A few
commenters also believed that following CORE results in non-compliant
ASC X12N 4010 transactions. Other commenters noted that it appeared
that we had required CORE for both ASC X12N 4010 and 5010 standard
transactions, but that CORE Phase 1 is only applicable to ASC X12N 4010
standard transactions and cannot be used with ASC X12N 5010 standard
transactions. A few commenters requested that we clarify whether
providers and vendors will be required to receive CORE certification.
Several commenters recommended ONC retain CORE Phase 1. A few
commenters noted that CORE promotes uniformity and can provide
significant reduction in transaction costs. A couple commenters
recommended that ONC adopt subsequent CORE standards in future stages.
Response. As previously mentioned, we have decided to align our
revisions with the changes made in the Medicare and Medicaid EHR
Incentive Programs final rule and to remove, as noted above, the
standards, implementation specifications, and certification criteria
associated with administrative transactions. Consistent with that
approach, we are removing the CORE Phase 1 implementation specification
for the reasons submitted in comments.
Section 170.302(l)--Medication Reconciliation

Comments. Many commenters suggested that for this certification
criterion we clarify whether we intended for the process of medication
reconciliation to be automatic or to support an eligible professional
or eligible hospital in performing this task. Many saw the former as a
potential risk to patient safety. Although several different reasons
were given, many commenters recommended that we revise the
certification criterion to indicate that two or more medication lists
be simultaneously displayed in order to permit an eligible professional
or eligible hospital to then reconcile the medication lists.
Response. We have reviewed commenters' concerns and intend to
clarify the language in this certification criterion. We recognize that
the technical foundation and safety checks are not currently in place
for automated medication reconciliation. We did not intend to imply
that automated reconciliation needed to occur through our use of the
word ``electronically.'' We used the term ``electronically'' to express
our expectation that eligible professionals and eligible hospitals
would be able to use Certified EHR Technology to complete this task.
Accordingly, we have revised this certification criterion to require
that Certified EHR Technology be capable of providing a user with the
ability to electronically compare two or more medication lists (e.g.,
between an externally provided medication list and the current
medication list in Certified EHR Technology). We expect that this could
be done in a number of ways and we do not want to preclude Complete EHR
and EHR Module developers from innovating, provided that the desired
outcome is reached. For example, a user could be presented with two
electronic lists side-by-side and move medications from one list to the
other and then select the final current list. Alternatively, a user
could view one list and two PDFs of other medications and use this
capability to update the current medication list. We do, however, see
great promise in making this capability more comprehensive and
anticipate exploring ways to improve the utility of this capability
before we adopt a subsequent round of certification criteria.
Comments. Several commenters supported this certification
criterion, but wanted clarification regarding how

[[Page 44614]]

we expected testing and certification to be accomplished, especially if
only one medication list was in use.
Response. We believe that the clarifications and revisions to the
certification criterion and the discussion above clarify how we intend
for this certification criterion to be tested.
Comments. Several commenters requested that we clarify the meanings
of ``medication reconciliation,'' ``transitions of care,'' and
``relevant encounter.''
Response. These terms are not used in the certification criterion.
We encourage commenters to review the Medicare and Medicaid EHR
Incentive Programs final rule to see how these terms have been
clarified in response to public comments.
Section 170.302(m)--Submission to Immunization Registries

Comments. A significant majority of commenters recommended that we
remove paragraph (m)(2) related to the applicable state-designated
format. These commenters contended that such a requirement was vague,
could be problematic from an interoperability perspective, and would
make certification impracticable.
Response. We agree with those commenters that requested we
explicitly focus the certification criterion and certification in
general on Federal requirements. We have therefore removed the
reference to ``applicable stated-designated standard format'' in the
certification criterion. Additionally, we have reviewed this
certification criterion and have determined that our reference to
``immunization registries'' is unnecessary. We are primarily concerned
with Certified EHR Technology's ability to transmit the immunization
information in a standardized format, and do not believe that it is
necessary to specify a particular recipient in the certification
criterion.
Comments. Many commenters supported our adoption of both HL7 2.3.1
and HL7 2.5.1. Some commenters acknowledged that HL7 2.3.1 was more
commonly used for the purpose of submitting information to immunization
registries while other commenters suggested that we only adopt HL7
2.5.1. Some commenters recommended that we keep our adopted standards
the way they are. Others recommended that we only adopt HL7 2.3.1
because most immunization registries cannot comply with HL7 2.5.1.
Response. We appreciate that commenters support our adoption of
both HL7 2.3.1 and HL7 2.5.1. We understand that both standards are
currently in use and for that reason we have permitted either to be
used for purposes of certification. We also understand that eligible
professionals and eligible hospitals will have to use the standard that
the immunization registry or Immunization Information System in their
jurisdiction can receive and, as a result, we have adopted the two most
common standards utilized for the transmission of immunization
information.
Comment. One commenter noted that it would be very helpful to
provide a source for mapping from the NDC code on the vaccine packaging
to the CVX/MVX codes used for interoperability, in anticipation of
supporting barcode scanning of vaccines. Another commenter noted that
while some mapping has occurred between CPT and CVX, they were not
aware of a translation map from NDC to CVX. They also stated that even
though a list of CVX codes is available, they were not aware of a
downloadable immunization database using CVX codes. They considered
this lack of a database a significant burden and impediment to
compliance. The commenter concluded by suggesting that CPT codes be
used instead of CVX codes, because CPT codes are used for billing
purposes and would be readily available.
Response. The CDC maintains an openly available list of updated CVX
codes as well as a mapping of CVX codes to CPT codes on their Web
site.\4\ Moreover, we believe that CVX codes are more appropriate than
CPT codes because as the commenter referenced, CPT codes are used for
billing purposes. In that regard, we believe that because there is a
publicly available mapping between CVX and CPT, it would not be
difficult or burdensome to map CPT codes to CVX codes. NDC codes were
not adopted as a standard to represent immunizations and we do not
believe that requiring their use for the purposes of demonstrating
compliance with this certification criterion would be appropriate.
---------------------------------------------------------------------------

\4\ http://www.cdc.gov/vaccines/programs/iis/stds/cpt.htm.
---------------------------------------------------------------------------

Comment. One commenter recommended that we revise the certification
criterion combined with associated standards to state, ``For the
purposes of electronically submitting information to immunization
registries Certified EHR Technology must be capable of using a
certified EHR module or portal provided by a state immunization
registry which is capable of submitting and retrieving coded
immunization information or capable of using HL7 2.3.1 or HL7 2.5.1 as
a content exchange standard and the CDC maintained HL7 standard code
set CVX--Vaccines Administered as the vocabulary standard.'' The basis
for this commenter's suggestion was that providers in its state link to
the state's

[[Page 44615]]

immunization module through EHRs and that all immunization data are
stored immediately in the state's registry. The commenter further
clarified that since the data resides in the state registry natively,
there is no need to transmit this information.
Response. In light of this commenter's suggestion, we have revised
the certification criterion to replace the word ``transmit'' with
``submit'' to better align this certification criterion with the
meaningful use objective and measure. We believe that submission of
immunization data would encompass this commenter's existing method.
Comment. One commenter stated that they believed the use of CVX is
neither mature nor widespread.
Response. We disagree. Our information indicates that CVX codes are
widely used for reporting to immunization registries.
Comment. Some commenters identified implementation specifications
that are available for the standards we had adopted for transmitting
immunization information. A couple of these commenters specifically
recommended using implementation specifications that would identify
message types necessary for transmissions to immunization registries.
Commenters also suggested using the CDC's implementation guides, and
explicitly recommended that we adopt the CDC public health information
network (PHIN) implementation guide version 2.2 associated with HL7
2.3.1 for the transmission of immunization information and the CDC
implementation guide as well as the implementation guide associated
with HL7 2.5.1.
Response. In the Interim Final Rule, we expressed our interest in
receiving public comment on whether there were additional
implementation specifications that we should adopt. We also noted that
we would consider adopting implementation specifications for any or all
of the standards adopted in the Interim Final Rule. After further
consideration of commenters' recommendations and consultation with the
CDC, we agree with these commenters and believe that adopting
implementation specifications for the transmission of immunization
information would benefit EHR technology developers and users.
Moreover, given commenters' general requests for greater specificity
and our stated goal of greater interoperability, we believe that it
would be appropriate to adopt the following implementation
specifications for the submission of immunization data. For HL7 2.3.1
we have adopted the ``Implementation Guide for Immunization Data
Transactions using Version 2.3.1 of the Health Level Seven (HL7)
Standard Protocol, Implementation Guide Version 2.2.'' We are aware
that this implementation specification has been successfully adopted
numerous times in various contexts since its publication four years ago
and do not believe that it will be burdensome for Complete EHR and EHR
Module developers to implement these specifications. For HL7 2.5.1, we
have adopted the ``Implementation Guide for Immunization Messaging
Release 1.0.'' This implementation specification represents the
collaborative effort of the American Immunization Registry Association
(AIRA) and the CDC. We have also consulted with CDC, and the CDC
confirms the appropriateness and supports the usage of these
implementation specifications in this context. We encourage migration
to this newer implementation specification and believe that it will
likely advance interoperability across the country and improve query
capabilities.
Comment. A commenter recommended that we clarify that the
certification criterion should be limited to verifying the ability of
the system to record, retrieve, and transmit immunization information.
Response. The purpose of testing and certifying a Complete EHR or
EHR Module to this certification criterion is to verify that it can
perform the capabilities included in the certification criterion.
Comment. A couple of commenters strongly supported the transmission
of immunization data to state and local immunization registries but
requested that the data requirements be expanded to include the
transmission of information regarding diseases such as cystic fibrosis
to pediatric registries.
Response. Presently, we do not believe that it is necessary or
appropriate to expand this certification criterion in this manner. We
emphasize, though, that this should not preclude eligible professionals
or eligible hospitals from using Certified EHR Technology to submit
other types of information as medically appropriate and if the
recipient of the information is capable of receiving the data.
Comment. A commenter recommended including the term ``modify'' in
the certification criterion.
Response. We agree, and consistent with our other certification
criteria that include the term ``modify,'' we have added this term.
Section 170.302(n)--Public Health Surveillance

Comments. A couple of commenters supported the adoption of
certification criteria related to public health reporting. One
commenter believed that this certification criterion should be
implemented as adopted.
Response. We appreciate commenters' support of this certification
criterion.
Comment. One commenter recommended that we defer any vocabulary
standard for public health reporting and surveillance until a later
date. Another commenter expressed

[[Page 44616]]

concern that we would adopt as a standard, ``according to applicable
public health agency requirements,'' because they thought it could be
problematic for hospital systems with facilities in two or more states,
as their EHR technology would have to meet whatever standards each
state elected to use.
Response. We clarify for commenters that we adopted two content
exchange standards for electronic submission to public health agencies
for surveillance and reporting. We did not adopt a specific vocabulary
standard, nor did we include the phrase one commenter stated that we
included. However, we have, consistent with our rationale in the
immunization submission certification criterion, removed our reference
to ``public health agencies'' as the recipient of information. Also,
consistent with the certification criterion above, we have replaced the
term ``transmit'' with ``submit.''
Comments. A couple of commenters stated that compliance with HL7
2.5.1 not be included in this adopted set of standards. One commenter
suggested HL7 2.5.1 should be adopted in a future rulemaking. Another
commenter suggested that HL7 2.3.1 be required for the purposes of
certification. Another commenter recommended that the standard be HL7
2.3.1, because in its opinion many public health agencies cannot comply
with HL7 2.5.1 while another commenter took the opposite position and
recommended HL7 2.5.1.
Response. Given the diversity in implementations and public health
agencies' ability to receive information in a given standard, we
believe that the flexibility included in this criterion is necessary
for the foreseeable future. However, relative to the general comments
we received regarding the adoption of implementation specifications for
adopted standards, we have adopted the following implementation
specifications for HL7 2.5.1: Public Health Information Network HL7
Version 2.5 Message Structure Specification for National Condition
Reporting Final Version 1.0 and the Errata and Clarifications National
Notification Message Structural Specification. We believe that these
implementation specifications provide the additional clarity commenters
were seeking and will enable Complete EHR and EHR Module developers to
focus their efforts on a more specific implementation of the HL7 2.5.1
standard. We do not believe that a suitable implementation
specification for HL7 2.3.1 exists for the purpose of public health
surveillance and reporting.
Comments. Multiple commenters stated concerns that the Federal
government and state governments, as well as other public health
agencies, do not have the capability to receive information
electronically in a standardized format. One commenter stated that
while they supported using the HL7 standards, some agencies are only
able to accept public health submissions if they have an HL7-based
feed. Several commenters suggested that the public health reporting
requirement be delayed until a single, national standard exists. One
commenter stated that requiring EHRs to ``electronically record,
retrieve, and transmit syndrome-based public health surveillance
information to public health agencies'' is a worthwhile future goal,
but they strongly questioned the likelihood that it could be
accomplished within the 2011-2012 timeframe. The commenter also noted
that the certification criterion did not specify which agencies (local,
state, Federal) are included, and that most of those agencies are not
prepared to receive biosurveillance data electronically in the format
specified. The commenter concluded that it would be difficult for any
EHR to prove compliance with the certification criterion as written and
recommended the following alternative: ``Electronically record,
retrieve, and be capable of producing an electronic message containing
syndrome-based public health surveillance information in accordance
with one of the standards specified in Sec. 170.205(g).''
Response. We recognize that some public health agencies do not yet
have the capability of electronically receiving information. We do not
believe that this should serve as a limiting factor, however, or
preclude Certified EHR Technology from having the capability to
transmit information in a standard format.
Comment. One commenter commented that if a public health agency is
unable to accept the data, separate reports could be filed with the
public health agency to ensure compliance with the standards.
Response. The commenter's point is unclear, as is its proposal. We
therefore reiterate that Certified EHR Technology must be capable of
transmitting health information in accordance with the standards
adopted by the Secretary, regardless of whether a specific public
health agency can accept or receive the information.
Comment. One commenter suggested that if current interfaces comply
with public health surveillance data using older versions of HL7, the
organizations should be allowed to keep these versions and not be
required to upgrade to a newer version.
Response. We permit a Complete EHR or EHR Module to be tested and
certified to either HL7 2.3.1 or HL7 2.5.1. No other versions will be
considered compliant with the adopted standards or certification
criterion.
Comment. One commenter recommended that we specify acceptable
testing methods. The commenter also recommended that the testing
methods should include an evaluation of HL7 conformance, completeness,
and accuracy of test messages sent to a state public health agency with
a demonstrated capability for electronic laboratory reporting.
Response. We do not specify the testing methods applicable to the
certification criterion, because that information is outside the scope
of this final rule.
Comment. One commenter suggested that adverse events be reported to
public health agencies.
Response. Our certification criterion does not preclude other types
of reportable events from occurring. Presently, we do not believe that
it is appropriate to modify the certification criterion to explicitly
refer to adverse events.
Comment. One commenter recommended that because some public health
agencies do not have the ability to receive public health surveillance
information in electronic format, we should clarify that this
certification criterion is limited to verifying the ability of the
system to record, modify, retrieve, and submit such information based
on at least one test of these capabilities.
Response. We reiterate, that the purpose of certification is to
verify that a Complete EHR or EHR Module can perform these
capabilities. That should not be construed to mean that an eligible
professional or eligible hospital is exempt from using Certified EHR
Technology to meet the meaningful use objective and measure.
Comment. A commenter recommended including the word ``modify'' in
the certification criterion.
Response. Consistent with our rationale above, we have added the
word modify to the certification criterion.
Section 170.302(o)--Access Control

[[Page 44617]]

Comment. One commenter explicitly noted its support for this
certification criterion. We received other comments that included some
mention of ``access'' but did not expressly focus on the certification
criterion or provide any related suggestions or recommendations.
Response. We appreciate the comment supporting this certification
criterion. This certification criterion remains unchanged from the
certification criterion adopted in the Interim Final Rule.
Section 170.302(p)--Emergency Access

Comment. One commenter asked that we clarify the circumstances that
would qualify as an ``emergency'' and further clarify whether
compliance with this certification criterion is intended to pre-empt
conflicting or stricter state laws that may limit this type of access
or require patient consent. Further, the commenter questioned whether
we were implying that some authorized users of Certified EHR Technology
would not be authorized for emergency situations or whether we intended
for any authorized user to be entitled to access in an emergency
situation. Finally, another commenter requested clarification as to
whether emergency access is driven by organizational policies and
whether capturing such access in an audit log is appropriate.
Response. We have adopted certification criteria to ensure that
Certified EHR Technology includes certain capabilities, in this case
that Certified EHR Technology be capable of permitting authorized users
to access electronic health information during an emergency. The
criterion is not intended to specify what constitutes an emergency or
who would be authorized to access electronic health information in an
emergency. In a medical emergency, those determinations would be made
under specific factual circumstances and in accordance with applicable
state and federal laws, organizational policies and procedures, and the
relevant standard of care.
With respect to emergency access, we note that HHS stated in the
HIPAA Security Final Rule (68 FR 8355):

We believe that emergency access is a necessary part of access
controls and, therefore, is properly a required implementation
specification of the ``Access controls'' standard. Access controls
will still be necessary under emergency conditions, although they
may be very different from those used in normal operational
circumstances. For example, in a situation when normal environmental
systems, including electrical power, have been severely damaged or
rendered inoperative due to a natural or manmade disaster,
procedures should be established beforehand to provide guidance on
possible ways to gain access to needed electronic protected health
information.

We believe that this certification criterion is consistent with the
HIPAA Security Rule.
Some commenters appeared to interpret our reference to
``emergency'' in ``emergency access'' as solely constituting a clinical
or life threatening emergency related to a patient for which access
would be required. We believe that emergency could encompass that
scenario, as well as a broader range of possibilities, including normal
patient care when timely access to electronic health information
becomes critical. Therefore, we have not sought to limit the
development of emergency access capabilities for Certified EHR
Technology to a particular scenario.
Comment. One commenter suggested that we require automated
notification of user activity to system administrators when emergency
access is invoked.
Response. We appreciate this suggestion. However, at the present
time, we do not believe that this requirement should be a condition of
certification because a person or entity's organizational policies and
procedures may ensure timely notification of appropriate personnel.
Section 170.302(q)--Automatic Log-Off

[[Page 44618]]

Comments. One commenter supported this requirement. Another
commenter concurred with the purpose of the certification criterion,
but noted that it may be difficult in some circumstances for eligible
professionals or eligible hospitals to implement this capability if the
Certified EHR Technology is offered as a service and multiple
individuals are using the Certified EHR Technology at the same time.
Response. We appreciate the commenters' support for the adoption of
this certification criterion. We believe that automatic logoff
capabilities are commonplace and that this certification criterion can
be met by any Complete EHR or EHR Module developer. We are aware that
many Web services today logoff customers after a period of inactivity
and do not believe this requirement is unduly burdensome for any
Complete EHR or EHR Module developer.
Section 170.302(r)--Audit Log

Comments. Several commenters recommended that we add to the
standard specified at Sec. 170.210(b) ``access,'' ``reading,'' or
``viewing'' as triggers for when actions needed to be recorded as part
of an audit log. One commenter recommended expanding the audit content
to include maintaining the before-access content of the information
accessed as well as the after-access content. Some commenters requested
clarification of the intended meaning of the reference to recording the
action of ``printing.'' Commenters recommended expanding or replacing
``print'' in the standard with other types of output methods such as
extraction, copy, exchange, report, and export. Some commenter stated
that the print function in many operating systems and software products
is a multiple step process that is difficult for any system to audit.
Other commenters expressed concerns that the requirement to audit all
printing would be difficult because there were numerous ways to
circumvent the specific action of printing, such as using the print
screen function and printing out the image of the screen shot. One
commenter stated that auditing of the print function would be possible,
but complete auditing of all possible ways of printing would be
impracticable.
Response. We appreciate the thoughtfulness and thoroughness of the
comments provided on this standard. We agree with commenters that
auditing the action of printing, as it was originally envisioned, could
be circumvented in such ways as to make the burden of trying to
accurately audit such occurrences outweigh the benefit. Accordingly, we
have removed ``printed'' from the standard. We also agree with
commenters that our omission of ``access'' should be corrected and we
have added ``accessed'' to the standard. We view the action of
``access'' to encompass ``reading'' or ``viewing'' and consequently
have not included those terms as well. Finally, we believe that the
action of ``accessed'' is a superset of actions which may include
``export'' and for that reason have not included, per some commenters'
suggestions, the word ``exported'' in the standard. Additionally, to
provide greater clarity, we have added in ``and by whom'' toward the
end of the standard in order to more clearly specify that the actions
recorded should be associated with the user identification that is
recorded.
The final standard will read as follows: ``The date, time, patient
identification, and user identification must be recorded when
electronic health information is created, modified, accessed, or
deleted; and an indication of which action(s) occurred and by whom must
also be recorded.''
Comments. Some commenters requested that we clarify the term ``user
identification'' in the standard specified at Sec. 170.210(b) and
recommended the use of existing standards-based definitions, such as
HL7's definition of author which includes person, organization, or
device.
Response. We specified in the standard that the date, time, patient
identification, and user identification must be recorded when certain
actions take place. The HL7's definition of author is consistent with
our expectation. While we believe that in most cases a user will be a
health care professional performing an action using Certified EHR
Technology, it is also possible that a device or another software
process or program could perform any one of these actions. We do not
intend to preclude Complete EHR and EHR Module developers from
including these and other types of specific features.
Comment. One commenter stated that the audit alert criterion
exceeds reasonable expectations for Certified EHR Technology to provide
automatic alerts, and recommended that the audit criteria focus on
record access rather than electronic alerts. Several commenters
suggested that alerts are not well defined and should be removed from
the criteria. Several commenters expressed concern that the audit
alerting criterion goes beyond what is required by HITECH and HIPAA and
exceeds the current capabilities of products in the market, and
recommends that the alerting criterion be eliminated from the final
rule. Some commenters recommended against the adoption of certification
criterion that requires EHR systems to create an unlimited and open-
ended series of rules to produce user-defined alerts, and suggested
that we should clearly define

[[Page 44619]]

which actions should be recorded and what alerts should be defined and
provided in an audit log. Several commenters stated that the use of the
phrase ``based on user-defined events'' in the criterion could be
easily misinterpreted or misunderstood to extend beyond ``entity-
defined'' events to include individual patient preferences. Some of the
commenters that expressed concerns also contended that it would be
difficult to test and certify this portion of the certification
criterion.
Response. Again, we appreciate the thoroughness of the commenters'
suggestions. With respect to alerts based on user-defined events, we
had intended for Complete EHRs or EHR Modules designed to provide this
capability to be capable of being configured by a specific user of
Certified EHR Technology or based on organizational policy to generate
alerts when certain actions (defined in the standard) had taken place.
For example, a user-defined event could be when a patient's health
information is accessed outside of normal business hours. In this case,
it was our expectation that Certified EHR Technology would alert a
specific user of the Certified EHR Technology or the organization's
information security staff. We understand the point that commenters
raise, however, about the potential for misinterpretation of this
certification criterion and the consequent potential burden.
Our overall intent for the third paragraph of this certification
criterion was to ensure that Certified EHR Technology provided the
capability for eligible professionals and eligible hospitals to gain
access to a specified portion, or a complete representation, of the
Certified EHR Technology's audit log. We believe that this capability
is essential for eligible professionals and eligible hospitals for risk
analysis and other purposes. Therefore, in concert with the feedback
commenters provided on the second paragraph, we analyzed whether
combining the third paragraph with the second paragraph into a single
paragraph would express a clearer requirement. Accordingly, we have
merged the two paragraphs and have adopted in the final rule a
requirement that we believe more clearly expresses our intent for this
certification criterion. We also note for clarification that the phrase
``any of the elements specified by 170.210(b)'' would also include, for
example, ``date'' or that information has been ``deleted.''
Finally, we believe that it is important for our privacy and
security certification criteria to remain consistent with the HIPAA
Security Rule to the degree that Certified EHR Technology includes
technical capabilities that are associated with assisting HIPAA covered
entities comply with applicable legal requirements. We disagree,
however, with those commenters who stated that we did not have a
sufficient legal basis to adopt this certification criterion the way we
did because it went beyond the HIPAA Security Rule. What a HIPAA
covered entity must do to remain in compliance with the HIPAA Security
Rule is separate and distinct from the capabilities that a Complete EHR
or EHR Module must include in order to be certified. We do not believe
that we are precluded by the HITECH Act from adopting certification
criteria that go beyond the requirements specified by the HIPAA
Security Rule. We believe that the HITECH Act, while directing that
standards, implementation specifications, and certification criteria be
consistent with the HIPAA standards, authorizes the Secretary to adopt
certification criteria more broadly for the electronic use and exchange
of health information. Section 3004(b)(1) of the PHSA, as added by the
HITECH Act, requires the Secretary, for instance, to adopt an initial
set of standards, implementation specifications, and certification
criteria to enhance the interoperability, functionality, utility, and
security of health information technology.
With respect to the concern expressed that this certification
criterion requires capabilities that exceed the current capabilities of
products in the market, we disagree. Based on our understanding of the
current EHR technology in the market, we believe that the capabilities
we have specified in the criterion and the embedded standard are
already common industry practice, and further, that the industry has
expanded the functionality available in audit logs.
Comment. One commenter suggested we defer our adoption of the
standard until the next rulemaking related to meaningful use.
Response. We disagree. As stated above, we believe that audit log
capabilities are an essential component of Certified EHR Technology. As
we mentioned above, we believe that the actions we have specified in
the standard, in response to public comment, are already common
industry practice. Moreover, audit logs will provide valuable
information to eligible professionals and eligible hospitals in the
event of a security incident.
Comments. Several commenters acknowledged the importance of the
audit log, but emphasized that the audit log requirements should
address the availability of the audit log and its security. Several
commenters recommended that additional requirements be added, including
that the audit log always be on during normal production for the
minimum elements specified in 170.210(b), be maintained in a secure
manner, be produced in a human readable format, and be retained in
conjunction with the retention period of the record.
Response. We agree with these commenters on the merits of their
suggestions. In particular, we note that audit logs provide an
important resource for eligible professionals and eligible hospitals.
Audit logs can assist in the identification of security incidents, such
as unauthorized access, as well as serve to deter users from conducting
fraudulent or abusive activities and detect such activities. The
purpose of adopted certification criteria is to specify the
capabilities Complete EHRs and EHR Modules must include in order to be
certified, not when such capabilities must be used. Accordingly, we do
not believe that it would be appropriate to specify in this
certification criterion the time period for which an audit log should
be ``on.'' We agree with commenters that audit logs should be
maintained in a secure manner. For this reason, we have preserved the
capability we adopted in the Interim Final Rule as part of the
integrity certification criterion that specified that Certified EHR
Technology must be capable of detecting alterations to audit logs. We
encourage the HIT Standards Committee to consider additional
capabilities that could be specified related to audit logs.
Comment. One commenter recommended that the IHE Audit Trail and
Node Authentication (ATNA) Integration Profile be used, but that its
use be constrained to the electronic transactions among organizations,
rather than electronic transmissions within an organization.
Response. We decided to defer our adoption of the ATNA standard
because it can be configured in multiple ways and we did not believe
that it would be appropriate at this time to require a specific
implementation as a condition of certification. Our deferral does not
preclude Complete EHR and EHR Module developers from using the
standard, however.
Comment. One commenter requested clarification between ``read''
audits and ``write'' audits, and how each is to be used. The commenter
suggested that not requiring the capability of ``read'' audits will
significantly reduce the ability of auditors to identify and
investigate

[[Page 44620]]

inappropriate use of health information when records are accessed but
not manipulated. The commenter noted that auditing all read operations
for all data elements within an EHR is infeasible. The commenter
further suggested that ``read'' operations should be audited only when
certain demographic health information needed to identify a patient
(e.g., name, record number, date of birth, address) is presented to or
can be known by the user.
Response. As discussed above, we have adopted in the standard the
action of ``accessed'' which would encompass the action of ``read.'' At
the present time, we only identify certain data elements in the adopted
standard that must be recorded and believe that this specificity will
help reduce any potential burden associated with recording the action
of ``accessed.''
Section 170.302(s)--Integrity

Comments. Several commenters requested a definition of ``in
transit.'' Other commenters suggested that hashing of messages in
transit be limited to circumstances of transmission over public
networks only. These commenters suggested that messages transmitted
over private networks be exempt from complying with this standard. One
commenter suggested that in addition to message hashing, digital
signatures should be required on messages in transit. Another commenter
stated that requiring hashing of messages in transit is overly
burdensome. One commenter requested that we clarify whether we intended
Sec. 170.302(s)(1) to require that the receiver of a message always
verify messages received rather than simply demonstrate the capability
to use hashing.
Response. We intend for this certification criterion to support, at
a minimum, the HIPAA Security Rule implementation specification
provided at 45 CFR 164.312(e)(2)(i) ``[i]mplement security measures to
ensure that electronically transmitted electronic protected health
information is not improperly modified without detection until disposed
of.'' Because this certification criterion specifies a capability that
Certified EHR Technology must include, we do not believe that it is
necessary or appropriate for us to address whether hashing is
applicable to public and private networks. Additionally, we clarify
that Certified EHR Technology must include the capability to check the
integrity of health information that has been received through
electronic exchange. However, similar to our approach to many adopted
certification criteria, we do not specify the instances in which this
capability needs to be executed. Nevertheless, in response to public
comments we have attempted to clarify this certification criterion. We
clarify that we expect Certified EHR Technology to be capable of
creating a message digest and when in receipt of a message digest, to
use the message digest to verify that the contents of the message have
not been altered. We have revised the certification criterion to
clarify our intent.
Additionally, based on these revisions in the certification
criterion, we wish to clarify the wording of the integrity standard
specified at 170.210(c). The standard currently includes the words ``or
higher'' at the end of the standard. To provide more certainty to the
industry of our intended meaning, we are replacing those words with
more accurate terminology. We have modified the standard to read as
follows: ``A hashing algorithm with a security strength equal to or
greater than SHA-1 must be used to verify that electronic health
information has not been altered.'' More information on SHA-1 and other
secure hash algorithms can be found in FIPS 180-3 \5\ while more
information on the security strength of certain hashing algorithms can
be found in NIST Special Publication 800-107.\6\
---------------------------------------------------------------------------

\5\ http://csrc.nist.gov/publications/fips/fips180-3/fips180-3_final.pdf.
\6\ http://csrc.nist.gov/publications/nistpubs/800-107/NIST-SP-800-107.pdf.
---------------------------------------------------------------------------

Comments. Some commenters noted that Sec. 170.302(s)(2) refers to
the use of the adopted standard which specifies the use of hashing to
detect audit log alteration or deletion and that such a requirement is
inappropriate. Other commenters recommended that hashing should not, at
the present time, be used for detecting alterations to data at rest.
Response. We have considered these comments and agree with these
commenters that this requirement requires further clarification. We
note that part of this requirement as adopted in the Interim Final Rule
(``detect * * * deletion of electronic health information'') is
redundant with the standard we specify for audit logs which requires
that deletions of electronic health information be recorded. For this
reason, we have removed the reference to the detection of deleted
electronic health information and have opted for a more concise
requirement that alterations to audit logs be detected. In response to
public comment, we have chosen not to specify a standard for detecting
alterations to audit logs at this time.
Comment. One commenter requested clarification as to how message
hashing should work when messages are part of a multi-part transmission
process, e.g., through switches, clearinghouses, and other brokers.
Response. We expect Certified EHR Technology to be capable of
generating a hash of electronic health information and upon receipt of
such information, verifying that it has not been altered when it has
been electronically exchanged. We recognize that certain situations may
not be conducive to the

[[Page 44621]]

use of hashes, which is why, as we noted above, we do not specify the
instances in which hashing must be used, just that Certified EHR
Technology include these capabilities.
Comment. One commenter stated that secure transmission requirements
are ``inappropriate'' because they do not support any meaningful use
requirements.
Response. We disagree. Meaningful use requires the electronic
exchange of health information and the protection of such information.
We believe that the only practical and effective way that electronic
health information can be exchanged in a meaningful manner is if the
integrity of the information can be maintained. Information
``integrity'' is also one of the three pillars of securing or
``protecting'' electronic information.
Section 170.302(t)--Authentication

Comments. One commenter expressly supported this certification
criterion. A majority of commenters expressed concerns related to Sec.
170.302(t) and the cross-enterprise authentication standard specified
at Sec. 170.210(d). Some commenters misinterpreted our example and
stated that Security Assertion Markup Language (SAML) should not be
required or be a named standard. One commenter suggested expanding the
set of examples we provided. Other commenters requested that the
standard and the related portion of the certification criterion be
removed because it was too burdensome to implement at the present time,
was overly broad, and could be subject to multiple interpretations.
Other commenters contended that there is an insufficient infrastructure
to support cross-enterprise authentication. One commenter stated that
cross-enterprise authentication would not reside in an EHR application,
but rather in the network infrastructure.
Response. We have considered the concerns issued by commenters and
agree that the burden associated with cross enterprise authentication
is unnecessarily high and cross-network authentication should not be a
condition of certification at the present time. As a result, we have
removed this specific part of the certification criterion and the
associated standard.
Comment. A commenter requested clarification as to whether ``user
name and password'' would be sufficient to authorize a user or whether
biometrics would be required.
Response. We do not believe that it is appropriate to specify, as a
condition of certification, the types of factors that users could
utilize to authenticate themselves.
Section 170.302(u)--Encryption

Comments. A number of commenters stated that transmissions of
health information over leased or private network lines should not be
subject to the encryption of data in transit requirement.
Response. Certified EHR Technology must include the capability to
encrypt and decrypt information regardless of the transmission method
used. This certification criterion and related standard do not specify
the circumstances under which encryption and decryption must be
performed; they simply require the capability. If an eligible
professional or eligible hospital determines that encryption is an
appropriate and necessary safeguard, we believe that Certified EHR
Technology should provide the capability to

[[Page 44622]]

implement encryption. Overall, we want to ensure that Certified EHR
Technology is capable of assisting eligible professionals and eligible
hospitals to implement more secure technical solutions if they
determine, based on their risk analysis, that technical safeguards such
as encryption are reasonable and appropriate, or required.
Comment. One commenter requested further clarification of the
phrase ``encrypted and integrity protected link.'' Several commenters
recommended that Transport Layer Security (TLS) ought to be
specifically named as a required protocol. Other commenters also
expressed concern that unless TLS is explicitly named, all example
protocols would be required to be supported.
Response. The example list of protocols that would meet the
certification criterion is not intended to be exhaustive or suggest
that Complete EHRs or EHR Modules must be capable of using all of the
listed protocols to be certified. The example list of protocols in the
Interim Final Rule was included solely for illustrative purposes. We
have, however, consistent with the way we have restructured the
regulatory text for some standards (to better associate them with the
adopted certification criterion that reference them), modified this
standard to simply express that the standard is any encrypted and
integrity protected link.
Comments. Several commenters suggested replacing the functional
description of the encryption standard with a specific reference to
FIPS 140-2. These commenters also noted that HHS had included such a
reference in an update to its guidance specifying the technologies and
methodologies that render protected health information unusable,
unreadable, or indecipherable that was included in the Breach
Notification for Unsecured Protected Health Information Interim Final
Rule, published on August 24, 2009 (74 FR 42740), and further,
requested that we make our standard consistent with this guidance. Some
commenters explicitly recommended that AES be specified as the
encryption algorithm standard.
Response. We have considered these commenters' points and have
decided to revise our adopted standard to be more flexible regarding
the encryption algorithms we permit EHR Technology to implement to be
certified. We have also sought to clarify how our adopted standard
relates to the guidance included in the breach notification interim
final rule. We have revised the general encryption standard to read as
follows: ``Any encryption algorithm identified by the National
Institute of Standards and Technology (NIST) as an approved security
function in Annex A of the Federal Information Processing Standards
(FIPS) Publication 140-2.''
The National Institute of Standards and Technology (NIST) published
Federal Information Processing Standards (FIPS) Publication 140-2 to
specify the security requirements for cryptographic modules. As part of
FIPS 140-X conformance, NIST publishes ``annexes'' of different
``approved'' security protocols. For purposes of encryption, NIST
maintains ``Annex A'' which identifies ``approved security functions.''
Annex A identifies both symmetric and asymmetric key encryption
algorithms that NIST has identified for use in accordance with FIPS
140-2. In response to commenters' concerns, we believe that leveraging
NIST's work in this area provides for a clearer requirement for
compliance and provides Complete EHR and EHR Module developers with the
ability to use one or more secure encryption algorithms for the
purposes of demonstrating compliance with this certification criterion.
We believe this flexibility will benefit eligible professionals and
eligible hospitals because they may be able to leverage a broader suite
of secure encryption algorithms. As noted in Special Publication 800-
111, which is specified in the guidance included in the breach
notification interim final rule for the encryption of data at rest,
``[w]henever possible, AES should be used for the encryption algorithm
because of its strength and speed.''
We point out that the adopted certification criterion identifies
certain discretionary authority that the Secretary is retaining with
respect to acceptable encryption algorithms. We have adopted the list
of approved encryption algorithms that NIST has identified and
referenced in FIPS 140-2 Annex A, which is being incorporated by
reference. While the list is intended to be current, we anticipate that
NIST will on an as-needed basis revise and update the list, based on
the development of new technologies or perhaps on identified
vulnerabilities associated with a particular algorithm. Regardless of
any revisions to this list by NIST, this version of Annex A that is
incorporated by reference will remain effective for purposes of serving
as the adopted encryption standard. With that said, if the Secretary
determines that one of the listed encryption algorithms poses a
significant security risk for Certified EHR Technology, the Secretary
will notify the public on the Department's Web site (and perhaps with
some time delay in the Federal Register), and will direct ONC-ATCBs or
ONC-ACBs not to test and certify Complete EHRs and EHR Modules
according to the specified compromised algorithm. The Department would
then follow-up with rulemaking as necessary and appropriate to update
the adopted list of acceptable encryption algorithms.
Comments. Many commenters expressed concerns that the rule would
require the encryption of data at rest. One commenter recommended that
encryption not be a required functionality of EHR systems, but defined
as limited to devices. Some commenters stated that requiring EHR
systems to be capable of encryption would hinder adoption.
Response. We require that Certified EHR Technology must be capable
of encrypting electronic health information. We do not specify the
policies surrounding the use of encryption by an eligible professional
or eligible hospital nor do we specify that it should only apply to
devices. Rather we intend for Certified EHR Technology to be
technologically capable of encryption, thereby allowing, if desired or
required, an eligible professional or eligible hospital who adopts
Certified EHR Technology to use this capability. We disagree that
requiring Certified EHR Technology be capable of encryption would
hinder adoption. To the contrary, we believe that Certified EHR
Technology capable of encrypting electronic health information will be
desired, especially in light of the new breach notification
requirements established by the HITECH Act and the Breach Notification
for Unsecured Protected Health Information Interim Final Rule. We also
take this opportunity to make a technical correction to this
certification criterion. We inadvertently combined both encryption
capabilities under the same paragraph and per our reaffirmed
interpretation expressed in the Temporary Certification Program, we
believe that the scope of one certification criterion starts at the
first paragraph level and includes all subparagraphs. As a result, we
view these as two distinct capabilities and have created a separate
certification criterion for each.
Comments. One commenter stated that the security requirements,
particularly for encryption, are lower than the security standards it
already meets. This commenter consequently believes that our adoption
of this standard would require it to reduce the security of its
products. Another commenter stated that encryption technology should
not be integrated into an EHR product, but should instead be
implemented through other means as

[[Page 44623]]

part of the system on which an EHR may be installed.
Response. We believe that Certified EHR Technology must be capable
of performing encryption. Because of the flexibility in the adopted
standard, however, how encryption is technically implemented is up to
the Complete EHR or EHR Module developer to determine within the
parameters of Annex A of FIPS 140-2. Given the changes we have made to
the general encryption standard, we believe that the full range of the
most secure encryption algorithms are available for Complete EHR and
EHR Module developers to implement.
Comments. A few commenters stated that the term ``user-defined
preferences'' in the certification criteria was too vague and allowed
too much latitude for divergent interpretations of the requirement.
Other commenters noted that users do not always get to define such
preferences as they would conflict with overarching organizational
policies.
Response. We intended the phrase, ``according to user-defined
preferences'' in the Interim Final Rule, to mean that users would have
the ability to elect when they wanted encryption to occur, for example,
at log-off. We recognize that organizational policies, software as
service models and other architectures in which Certified EHR
Technology may be implemented, could lead to encryption being
instituted in significantly different ways and, as a result, we have
removed the reference to ``user-defined preferences.''
Section 170.302(v)--Accounting of Disclosures

Comments. Many commenters asserted that the certification criterion
and accompanying standard for accounting of disclosures for treatment,
payment, and health care operations (as these terms are defined at 45
CFR 164.501) would be a resource intensive process and too
administratively, technically, and financially burdensome. A large
portion of commenters further conveyed specific challenges including:
The ability to differentiate between a ``use'' and a ``disclosure'' (as
these terms are defined at 45 CFR 160.103); storing three years worth
of disclosures, which many noted could be voluminous; that health care
providers, especially hospitals, have decentralized systems, which
today are manually accessed to create an accounting of disclosures; the
development time for such a capability would take more time than is
available before the meaningful use Stage 1 effective date; that it
would be difficult to account for these types of disclosures in real-
time without a code set for disclosures; that this requirement could
affect workflow; and the scope of electronic exchanges that the term
``disclosure'' would encompass is unclear. A majority of commenters
also echoed that the Secretary should use discretion provided by the
HITECH Act to delay the compliance date for accounting of disclosures
for treatment, payment, and health care operations. Commenters
supported this suggestion by pointing out that the Secretary has not
yet formally established the policies for accounting of disclosures.
They explained that the HITECH Act requires the Secretary to promulgate
a rule no later than six months after the Secretary has adopted a
standard for accounting of disclosures, which has not yet occurred.
Many of these commenters suggested that the certification criterion and
standard should be removed or their adoption delayed until after the
technical specifications for accounting of disclosures can be
harmonized with the Secretary's forthcoming promulgation of a
regulation on this issue. Other commenters noted that the HIT Policy
Committee included accounting of disclosures in its suggestions as a
meaningful use Stage 3 objective. In response to the questions we
posed, several commenters noted that to whom the disclosure was made
(recipient) should be an important element included in an accounting of
disclosures. One commenter noted that the standard should be the same
as what is currently applicable to disclosures that are not for
treatment, payment, and health care operations and cited the
requirements at 45 CFR 164.528(b)(2). Other commenters stated that the
adopted certification criterion should be an audit log.
Response. We appreciate the thoroughness, specificity, and detail
provided by many of those who commented on this certification
criterion. We recognize that significant technical and policy
challenges remain unresolved. Accordingly, we do not believe that the
capability to account for disclosures should be a condition of
certification at the present time. As discussed in the beginning of the
preamble of this final rule, we have decided to make this certification
criterion ``optional'' instead of removing it. Additionally, the
standard will remain unchanged as currently worded and as applicable to
the certification criterion to provide guidance to Complete EHR and EHR
Module developers that choose to adopt this capability at this time. As
an optional certification criterion, though, Complete EHR or EHR Module
will not be required to possess the capability for certification. As we
stated previously in the Interim Final Rule, we plan to work
collaboratively with the Office for Civil Rights (OCR) as it develops
the regulatory policy related to this requirement. We anticipate
updating this certification criterion and the related standard in a
future rulemaking to reflect OCR's final policies regarding accounting
of disclosures.
Comment. Several commenters requested that we clarify what is meant
by a ``description of the disclosure.'' Some commenters noted that it
would not be possible to include these descriptions in an accounting
without code sets for the various types of disclosures. These
commenters also indicated that this requirement could have serious
workflow implications unless it can be fully automated.
Response. We recognize the technological challenges associated with
effectively and efficiently addressing this aspect of the standard
which some commenters mentioned. We also recognize that the regulated
community is awaiting the proposed rule and subsequent final rule that
will implement important privacy provisions

[[Page 44624]]

of the HITECH Act. As we discussed in the Interim Final Rule, we
intended to leave Complete EHR and EHR Module developers with the
flexibility to innovate in this area and to develop new solutions to
address the needs of their customers. We anticipated that a
``description of the disclosure'' would, at the present time, be a free
text field that would have included any information that could be
readily and electronically associated with the disclosure. For example,
we envisioned that some descriptive information could be included such
as the words ``treatment,'' ``payment,'' or ``health care operations''
separately or together as a general category. We also assumed that
Complete EHR and EHR Module developers could find innovative ways to
associate certain electronically available information with the
disclosures, such as, to whom the disclosure was made. Again, for the
time being, we have made this certification criterion optional, and
will wait for OCR to promulgate final regulations for accounting of
disclosures, before revisiting whether this certification criterion
should be required.
b. Specific Certification for Complete EHRs or EHR Modules Designed for
an Ambulatory Setting--Sec. 170.304
Section 170.304(a)--Computerized Provider Order Entry

Comments. A couple of commenters noted that within the confines of
many hospitals, just about any ``order'' can be entered, so the process
of order entry is defined. For providers, the commenter noted that the
ability to perform orders varies. The commenter inquired whether a
specific meaning for order entry was intended for this certification
criterion. A few commenters supported the certification criterion. One
commenter recommended that referrals to dieticians, speech therapists,
child life and social services be added to the order types, as well as
durable medical equipment, orthotics, and prosthetics. Another
commenter recommended that CPOE include a Patient Plan of Care (PPOC)
because, according to the commenter, PPOC requires the content
necessary for electronic data interoperability. The commenter felt that
PPOC within an EHR would help to achieve the integration goals that
promote the appropriate exchange of medical information for the optimal
coordination of patient care in different healthcare settings. Another
commenter suggested that we narrow the CPOE requirements to focus on
medications, laboratory tests, and imaging tests. One commenter stated
that based on the discussions of CPOE in the Interim Final Rule and the
Medicare and Medicaid EHR Incentive Programs proposed rule, we should
consider a request for a consultation or a provider referral made by an
eligible professional in a private practice to constitute an order that
should be handled functionally through CPOE.
Response. We agree with the commenter that suggested that we narrow
our focus, in order to reduce the burden associated with this
certification criterion. Accordingly, we have removed ``provider
referrals'' from the certification criterion. Complete EHR and EHR
Module developers may include additional orders as they see fit and as
recommended by some commenters, however in order to be certified they
must include at a minimum the three order types (medications,
laboratory, and radiology/imaging) specified in the certification
criterion. Many commenters generally supported these three specified
order types and we note that while the final meaningful use Stage 1
objective focuses on medication orders, we believe that for the
purposes of certification and to equip eligible professionals with a
basic set of ordering capabilities, it is appropriate to continue to
maintain these three order types. (This response also applies to the
change we made in the CPOE certification criterion for Complete EHRs or
EHR Modules designed for an inpatient setting). Finally, in further
reviewing this certification criterion in light of comments received,
we have also determined that it would be appropriate and clearer to
replace the term ``manage'' with ``modify'' to be more consistent with
the terminology used in other certification criteria. We have also made
this change in the CPOE certification criterion for Complete EHRs and
EHR Modules designed for an inpatient setting.
Comment. A commenter stated that the lab industry does not have any
standards for order entry, and even among lab providers, their
operating units utilize different standards. The commenter contended
that this lack of consistency in order entry would require EHRs to
build custom interfaces to every lab. They recommended that we require
that Certified EHR Technology provide the ability to link the results
to the original order. Another commenter recommended that the
certification criterion include the requirement for standardized bi-
directional laboratory interfaces, including functionality pertinent to
all the laboratory order data needed for the laboratory to conduct
proper testing, patient matching and billing (including limited
coverage rules and printing of Advance Beneficiary Notices (ABNs)).
Response. In the certification criterion discussed above regarding
incorporating laboratory test results, we have required that Certified
EHR Technology be capable of electronically attributing, associating,
or linking a laboratory test result to a laboratory order or patient
record. Bidirectional exchange (including electronic transmission of

[[Page 44625]]

laboratory orders) is not a requirement of meaningful use Stage 1 and
is beyond the scope of this rule.
Comments. Several commenters recommended we clarify that the user
of CPOE includes the eligible professional and any authorized user in
the office of the eligible professional (EP). They also recommended
that CPOE be deemed to include the scenario in which only the actual
orders are entered by the EP, with the additional billing and
demographic information entered by authorized users in the EP's office
or even by third parties (e.g. laboratory personnel in the patient
service center of a laboratory that collects specimens from the
patient).
Response. As we stated in an earlier response, the standards,
implementation specifications, and certification criteria adopted in
this final rule apply to Complete EHRs and EHR Modules. We have focused
on whether Certified EHR Technology must include a capability and how
it must perform the capability. As a result, it is not within the scope
of this rulemaking to specify the persons who would need to use CPOE.
Comment. A commenter suggested that we not create controlled
vocabularies or value sets in the regulation but rather refer to and
adopt existing controlled vocabularies or subsets. The commenter also
stated that the regulation introduces a requirement to record, store,
retrieve and manage orders, though no vocabularies are specified and
further pointed out that there are no vocabularies or standards for
orders, images, or referrals in any part of the Interim Final Rule. The
commenter recommended that the Department focus its efforts on
identifying and adopting standards for computable and interoperable
representations of these elements and processes before directing
eligible professionals to implement ``CPOE.''
Response. We appreciate the commenter's concern. This is an initial
set of standards, implementation specifications, and certification
criteria and we expect to adopt more standards, implementation
specifications, and certification criteria in the future as necessary
to improve the comprehensiveness of certain capabilities.
Comment. A commenter requested that we clarify whether only imaging
and radiology reports were intended to be included in this capability,
or, if we intended to include the images themselves in addition to the
imaging reports as part of the certification criteria. The commenter
recommended that we further clarify the criterion and moreover, adopt
the DICOM standard in the initial set of standards, as an essential
step in meeting the CPOE capability.
Response. We clarify that the adopted certification criteria
related to CPOE pertain only to the ordering, and not to the delivery
of results (reports or images). As a result, we do not believe that
this commenter's recommendation is applicable to this certification
criterion.
Comment. A commenter recommended that the CPOE certification
criterion should include a prompt for an authorized user of the CPOE to
include diagnosis codes at order entry.
Response. We do not believe that it would be appropriate to specify
this type of capability as a condition of certification because it is
not central to the meaningful use objective and measure this
certification criterion is intended to support.
Section 170.304(b)--Electronically Exchange Prescription Information

Comments. Many commenters supported the adoption of NCPDP SCRIPT
8.1 and the inclusion of NCPDP SCRIPT 10.6. These commenters also
encouraged the exclusive adoption of NCPDP 10.6 for meaningful use
Stage 2. One commenter stated that more clarification was needed as to
which NCPDP SCRIPT standard was required for certification.
Response. In the Interim Final Rule, we stated that we expected
that CMS would identify as a backwards compatible standard NCPDP SCRIPT
10.6 and permit its use as an alternative to NCPDP SCRIPT 8.1 for the
electronic transmission of prescription and certain other prescription-
related information for Medicare Part D covered drugs prescribed for
Part D eligible individuals (75 FR 38026). Further, we stated that ``if
SCRIPT 10.6 is permitted, prior to any modification of the provisions
of this interim final rule in response to public comment, we would
expect to change our requirement to simply permit either SCRIPT 8.1 or
SCRIPT 10.6.'' Accordingly, we have modified this certification
criterion to specify that Complete EHR and EHR Module developers may
seek to have their Complete EHR or EHR Module tested and certified to
either solely NCPDP SCRIPT 8.1 or 10.6. Additionally, we have also
replaced the standard adopted in the Interim Final Rule and have
adopted both NCPDP SCRIPT 8.1 and NCPDP SCRIPT 10.6. As discussed in
the beginning of the preamble, we have revised our approach to
specifying the certification criteria to more clearly focus on the
capabilities with which they must be associated. Therefore, we have
modified this certification criterion to specify that a Complete EHR or
EHR Module would be compliant with this certification criterion if it
has the capability of generating and transmitting prescription and
prescription-related information according to NCPDP SCRIPT 8.1 while
also using the adopted vocabulary standard, or if it is capable of
generating and transmitting prescriptions and prescription-related
information according to NCPDP SCRIPT 10.6 while also using the adopted
vocabulary standard.
Comments. Several commenters supported the adoption of RxNorm and
the use of RxNorm code sets as a vocabulary standard. One commenter
recommended that RxNorm be adopted

[[Page 44626]]

in Stage 1 while one commenter stated that Stage 2 is likely the
earliest timeframe practicable for implementation. Others suggested
that more testing was needed before RxNorm could be adopted in full.
Some commenters stated that RxNorm is not complete and requested
guidance on how gaps in RxNorm will be addressed. A couple commenters
stated a concern that current drug databases do not map to RxNorm and
that in order to develop interfaces for electronic prescribing
services, pharmacies and developers will need to expend significant
effort. Other commenters stated that more clarification was needed with
respect to the description of the adopted standard and one of those
commenters recommended that the description be changed to ``a drug data
source provider that demonstrates group domain comprehensiveness.''
Response. We have consolidated and addressed our adopted vocabulary
standard for medications under this certification criterion. However,
our response and subsequent clarifications are applicable to all
certification criteria that reference this vocabulary standard.
As we explained in the Interim Final Rule, we determined that the
HIT industry would benefit from a certain degree of flexibility with
respect to the coding of medications. To provide this flexibility while
also establishing a glide path to full adoption of RxNorm, we adopted a
standard that permits the use of one of many different vocabulary
standards. We specified that a Complete EHR or EHR Module would be
compliant with the adopted vocabulary standard if it utilized ``[a]ny
code set by an RxNorm drug data source provider that is identified by
the United States National Library of Medicine as being a complete data
set integrated within RxNorm.'' We specified the standard this way in
order to establish what we believe is an important bridge to full
RxNorm adoption and will help facilitate this transition over time. Our
adoption of this standard stems from our belief that Complete EHRs and
EHR Modules should be capable of classifying and categorizing
medications for the purpose of clinical quality measurement and
clinical decision support. The National Library of Medicine (NLM)
maintains the Unified Medical Language System[supreg] (UMLS[supreg]),
which contains the mapping between RxNorm and commonly utilized drug
vocabularies.
At the time we published the Interim Final Rule, we noted that NLM,
according to the most recent RxNorm release, listed a number of RxNorm
drug data source providers with complete data sets integrated within
RxNorm. After the Interim Final Rule was published, NLM subsequently
released several more RxNorm versions. NLM has also reorganized the
RxNorm documentation in a way that we believe more clearly specifies
the intent of our standard. Accordingly, we believe that this standard,
particularly in response to public comments, can be further clarified.
In addition, to permit the development or mapping and use of other
vocabularies independent of NLM, we have dropped the requirement that
NLM explicitly identify the acceptable data sources. Instead, the
standard now permits the use of codes from any drug vocabulary
successfully included in RxNorm. To provide guidance and clarification
to the industry, we will recognize any source vocabulary that is
identified by NLM's RxNorm Documentation as a source vocabulary
included in RxNorm. We are therefore revising the standard to state:
``Any source vocabulary that is included in RxNorm, a standardized
nomenclature for clinical drugs produced by the United States National
Library of Medicine.'' We note that in section 3.1, of the most recent
release of the ``RxNorm Documentation (06/07/10, Version 2010-3) \7\,''
NLM has identified the following source vocabularies as being included
in RxNorm.
---------------------------------------------------------------------------

\7\ http://www.nlm.nih.gov/research/umls/rxnorm/docs/2010/rxnorm_doco_full_2010-3.html.
---------------------------------------------------------------------------

GS--Gold Standard Alchemy.
MDDB--Medi-Span Master Drug Data Base.
MMSL--Multum MediSource Lexicon.
MMX--Micromedex DRUGDEX.
MSH--Medical Subject Headings (MeSH).
MTHFDA--FDA National Drug Code Directory.
MTHSPL--FDA Structured Product Labels.
NDDF--First DataBank NDDF Plus Source Vocabulary.
NDFRT--Veterans Health Administration National Drug File--
Reference Terminology.
SNOMED CT--SNOMED Clinical Terms (drug information).
VANDF--Veterans Health Administration National Drug File.
We clarify for commenters that the standard we have adopted is a
functional standard that enables the use of any source vocabulary that
is included within RxNorm. Consequently, any one of these ``source
vocabularies'' identified by NLM may be used, or any other source
vocabulary successfully included within RxNorm.
Comments. A few commenters stated concerns about this certification
criterion causing two different workflows because of the restrictions
placed on the electronic prescribing of controlled substances.
Response. The Drug Enforcement Agency has since published an
interim final rule (75 FR 16236) on the requirements related to the
electronic prescribing of controlled substances. At the present time,
we do not require as a condition of certification for Complete EHRs and
EHR Modules that they be capable of enabling compliance with the
current DEA provisions for the electronic prescribing of controlled
substances.
Comments. A couple of commenters stated that the prescribing
capabilities must allow for weight-based dosing calculation with
intelligent rounding and that without this, e-prescribing will not be
helpful to pediatricians.
Response. We recognize that this is an important capability for
pediatricians; however, we do not believe that it necessary to require
it as a condition of certification at the present time. Again, this
does not preclude Complete EHR and EHR Module developers from including
this capability.
Comments. A few commenters expressed concerns about some pharmacies
not being capable of receiving electronic prescriptions which they
stated could cause a negative impact on the workflow. One commenter
suggested that we add a ``where possible'' to the certification
criterion.
Response. While we recognize that some pharmacies may be unable to
receive electronic prescriptions at the present time, we do not believe
this limitation should affect the capability that Certified EHR
Technology must provide. Further, we do not believe that inserting
``where applicable'' would be beneficial because it would make the
criterion unnecessarily ambiguous. This phrase would relate to when
electronic prescribing should be conducted, not how it should be done,
which is the focus of this certification criterion.
Comment. A commenter stated that the electronic prescribing process
should be linked to the contraindication and formulary conflict process
and should provide automatic alerts. Another commenter recommended that
information relating to the language the patient speaks should be
required as part of the electronic prescribing process, so that
pharmacy is notified of a patient's need for language assistance.
Response. We do not believe that it would be appropriate to expand
the certification criterion as suggested at this time. This does not
preclude a Complete EHR or EHR Module

[[Page 44627]]

developer from pursuing other ways to optimize how a Complete EHR or
EHR Module may function.
Section 170.304(c)--Record Demographics

Comments. Several commenters recommended that we adopt the OMB race
and ethnicity codes.
Response. We agree with these commenters and have adopted the OMB
race and ethnicity codes. In the Medicare and Medicaid EHR Incentive
Programs proposed rule (75 FR 1855), CMS stated that race and ethnicity
codes should follow current Federal standards. We note that the OMB
race and ethnicity codes constitute a government-unique standard for
the purposes of the National Technology Transfer and Advancement Act of
1995 (NTTAA). We have adopted this standard because it provides an
easily understood structure and format for electronically transmitting
the data elements identified in the meaningful use Stage 1 objective,
the standard is readily available, in general it provides the best
standard to use to support our policies goals. Moreover, we are unaware
of any alternative voluntary consensus standard that accomplishes the
same purpose.
Comments. Several commenters recommended additional elements for
the certification criterion for us to consider adding. One commenter
recommended that we include more demographic data items to allow
successful matching with prior admissions and further that we consider
requiring the inclusion of social security number, birthplace, and
years of education, if available. A couple commenters requested that we
add occupation and industry status as well because they are already
required for cancer registries. Another commenter suggested that we add
family history to demographics that should be captured and reported.
One commenter suggested that we also include a patient's functional
status. Many commenters suggested that we encourage self-reporting of
demographics and indicate whether information was self-reported.
Finally, one commenter stated that EHRs are not appropriate source of
legal documentation for births and deaths.
Response. While we understand commenters' intentions, we do not
believe that it would be appropriate to expand this certification
criterion beyond what is required to support meaningful use. Again, as
we have previously stated, this does not preclude a Complete EHR or EHR
Module developer from including the capability to record additional
demographic information. Finally, consistent with the Medicare and
Medicaid EHR Incentive Programs final rule, we have removed the
capability to record insurance type from the certification criterion.
Section 170.304(d)--Generate Patient Reminder List

Comments. Several commenters stated that they support this
certification criterion. Other commenters requested further definition
of the term ``specific conditions,'' particularly whether this term
refers to data as contained in the problem list. One commenter
suggested that the criterion text be modified to read: ``Electronically
generate, upon request, a patient reminder list for preventive or
follow-up care according to patient or physician preferences based on
demographic data, specific conditions, and/or medication list.''
Several commenters requested further definition of the term ``patient
preferences.'' Clarification was requested about the meaning of the
term, how these preferences would be recorded, how the preferences
would be used, and whether the preferences should be automated. A
question was raised by two commenters about how many choices should be
allowed for the preferred reminder delivery method due to additional
EHR system programming that may be

[[Page 44628]]

needed to support the set of choices. One commenter was concerned about
whether there would be a cost to physician practices to implement this
requirement and whether the practices will have the capacity to
accommodate this requirement. Another commenter suggested that this
requirement be moved to meaningful use stage 2 to allow more time for
EHRs to be enhanced. Several commenters requested clarification of the
term ``upon request.'' One commenter wanted to know which persons would
be authorized to request the patient reminder list and how often.
Another commenter suggested that the phrase ``upon request'' be
removed, as it believed that outpatient physicians could make
significant advances in the health of their patients by generating and
delivering reminders at every encounter.
Response. In response to comments, we have revised this
certification criterion to more clearly articulate the capability we
expect Certified EHR Technology to include. CMS discusses and clarifies
the intended meaning of ``patient preferences'' in the Medicare and
Medicaid EHR Incentive Programs final rule and because this term is
derived from the meaningful use objective, we encourage commenters to
review CMS's responses to their requests for clarification. Consistent
with the revisions we made to the ``generate patient lists''
certification criterion, we believe that Certified EHR Technology
should be able to leverage the information, specifically the structured
data it had available to it, to assist eligible professionals and
eligible hospitals generate a patient reminder list. We have removed
``upon request'' from the certification criterion, because, after
further review, we believe that the action of requesting a list is
implied by the certification criterion and the meaningful use measure,
and therefore, unnecessary to further specify.
Comments. Two commenters stated that specialists will use patient
reminders differently than primary care providers. These commenters
worried that some patients' preferences may exceed a system's current
capabilities and one commenter requested that the phrase ``with respect
to system capability'' be added after ``patient preferences.''
Response. We understand these commenters' points of view, however,
we do not believe that this addition is necessary given the references
in the certification criterion to specified data elements and CMS's
express desire to consider patient preferences as described in the
Medicare and Medicaid EHR Incentive Programs final rule.
Comments. Two commenters asked whether this requirement refers to
the creation of a list for the internal purposes of the eligible
professional and his/her staff only and does not refer to or require
electronic communication to a patient.
Response. Yes, we expect Certified EHR Technology to be capable of
generating a patient reminder list for an eligible professional and
his/her staff. The meaningful use measure establishes the requirement
for an eligible professional to take action once the reminder list has
been generated.
Comments. Two commenters suggested that the set of variables
contained in the demographic information for the patient lists note the
preferred language of the patient.
Response. Preferred language is included in demographics and we do
not believe that it is necessary to expressly call it out as part of
this certification criterion.
Section 170.304(e)--Clinical Decision Support

Comments. Several commenters were explicitly supportive of this
certification criterion, while others offered specific suggestions and
requests for clarification. Several commenters requested that we
specify the decisions support rules that should be included. One
commenter asked if we could clarify whether a Complete EHR or EHR
Module developer would have to include specific rules that individual
eligible professionals would want or whether those rules could be added
later. Another commenter asked for clarification regarding several
terms including ``diagnostic test results,'' whether a ``condition''
was equivalent to ``problem,'' as well as whether the rules would be
associated with quality measures.
Response. In consideration of commenters' request for clarification
and to more closely align this certification criterion with the
meaningful use measure, we have revised this certification criterion.
We have removed the terms that caused some confusion with commenters
and believe that these revisions will provide more specificity and will
make

[[Page 44629]]

compliance with the certification criterion easier. Moreover, we
clarify that with respect to notifications, that ``real-time'' means at
the point of clinical decision making (i.e., notifications must be
provided when an eligible professional is using Certified EHR
Technology and not run overnight and provided in the morning, for
instance).
Comments. A number of commenters asked questions and requested
clarifications regarding ``alerts.'' One commenter requested whether it
is the number of alerts that is important or the type of alerts that is
important and how we expect an eligible professional to respond to an
alert. The commenter also asked if we could clarify what would qualify
as a ``response.'' One commenter stated that whether we intended for
the examples (pop-up or sound) to be inclusive of the types of alerts
we expected Certified EHR Technology would include and whether this was
deemed more valuable than a more passive notification. The commenter
suggested that the word ``alert'' be replaced with ``notification''
while another suggested the word ``advisory.'' Some commenters
requested clarification regarding ``alerts responded to by a user'' and
whether there was an expectation that alerts communicate structured
reasons. These commenters also asked whether users would enter a reason
for any overrides or, in the case of notifications, the user would
simply acknowledge the alert by clicking ``OK.'' The commenters also
questioned whether ignored alerts should be tracked? Many of these
commenters recommended removing Sec. 170.304(e)(3). Alternatively, one
commenter recommended that we not only consider the number of alerts
``responded to'' but also the action prompted and whether or not that
action was taken.
Response. We thank commenters for the thorough feedback on this
certification criterion. We have already addressed in our responses
above the concerns raised by commenters and will not repeat them here.
With respect to the third part of this certification criterion, we have
considered public comment and have decided to remove the requirement
from the certification criterion. We also removed this requirement to
be more consistent with CMS's expectations for meaningful use, which do
not include requiring the tracking of alerts at this time.
Comments. A few commenters asked for clarification on what we meant
by ``evidence grade'' and what standard for evidence grading will be
applied in order to determine compliance with this objective. Other
commenters noted that ``evidence grade'' as a part of the rules to
trigger alerts is not widely available in the marketplace and that
using evidence grade in this manner could be burdensome and present a
significant maintenance issue.

Response. We have considered public comment, and agree that
evidence grade is not as widely available in the marketplace as we had
anticipated. We therefore remove our reference to ``evidence grade'' in
the certification criterion.
Section 170.304(f)--Electronic Copy of Health Information

170.205(a)(2)(i)(
A), or, at a
minimum, the
version of the
standard
specified in Sec.

170.205(a)(2)(i)(
B);
(iii) One of the
standards
specified in Sec.

170.205(a)(2)(ii)
;
(iv) At a minimum,
the version of
the standard
specified in Sec.

170.205(a)(2)(iii
); and
(v) The standard
specified in Sec.

170.205(a)(2)(iv)
.
Final Rule Text: Sec.
170.304(f).
Electronic copy of
health
information.
Enable a user to
create an
electronic copy
of a patient's
clinical
information,
including, at a
minimum,
diagnostic test
results, problem
list, medication
list, and
medication
allergy list in:
(1) Human readable
format; and
(2) On electronic
media or through
some other
electronic means
in accordance
with:
(i) The standard
(and applicable
implementation
specifications)
specified in Sec.
170.205(a)(1)
or Sec.
170.205(a)(2);
and
(ii) For the
following data
elements the
applicable
standard must be
used:
(A) Problems. The
standard
specified in Sec.
170.207(a)(1)
or, at a minimum,
the version of
the standard
specified in Sec.
170.207(a)(2);
(B)Laboratory test
results. At a
minimum, the
version of the
standard
specified in Sec.
170.207(c); and
(C) Medications.
The standard
specified in Sec.
170.207(d).
------------------------------------------------------------------------

Comment. A commenter recommended that durable medical equipment and
supplies be added to the minimum list.
Response. In the context of the Meaningful Use Stage 1 objective
and measure, we do not believe that it is appropriate, at the present
time, to add durable medical equipment in the certification criterion.
However, that does not preclude Complete EHRs and

[[Page 44630]]

EHR Modules from having that additional capability.
Comments. A few commenters requested clarification as to the
underlying intent of the certification criterion and whether it was
intended that a patient be provided with a complete medical record or
simply a ``snapshot.'' Commenters also asked how longitudinal the copy
must be and requested that we specify a time period that the electronic
copy must cover. A commenter stated that eligible professionals should
be able to limit the applicable time period by episode of care or other
parameters. The commenter noted that state law also specifies the
information that can be provided to a patient without the provider
serving as an intermediary. A few commenters requested clarification
that the medication list is limited to the current medication list. A
commenter recommended that the certification criterion be limited only
to information readily available to the provider at the conclusion of a
patient encounter.
Response. We expect Certified EHR Technology to be capable of
generating an electronic copy of health information that includes the
minimum elements required as a condition of certification. We do not
believe that it is appropriate to dictate the timeframe such
information must encompass, but we would expect that it would include,
at a minimum, the most current information that is available and
accessible within the Certified EHR Technology. We do not believe that
limiting this certification criterion to specify that just the
information available at the end of an encounter is consistent with our
policy objectives.
Comments. Many commenters requested a definition of ``diagnostic
test results.'' One commenter suggested that for Stage 1, the
definition of diagnostic test result be made clear and be limited to,
at a minimum, lab results.
Response. This term is derived from the Medicare and Medicaid EHR
Incentive Programs final rule, and its meaning is described there. We
encourage commenters to review the Medicare and Medicaid EHR Incentive
Programs final rule.
Comments. Several commenters requested that ONC define how relevant
procedures are determined for the certification criterion. The
commenters suggested that a subset of procedures (e.g., surgeries,
catheterizations) be defined to avoid generating huge lists of
``small'' procedures (e.g., venipunctures). These commenters expressed
that it was critical for the rule to provide a clear, clinically-
relevant definition of which types of procedures are to be included.
Response. We appreciate the comment and have revised this
certification criterion to remove ``procedures'' as well as
``immunizations,'' to be more consistent with the final meaningful use
objective and measure and for greater clarity.
Comment. A commenter requested clarification on how an electronic
copy will be disseminated, and provided examples such as a web-portal,
e-mail, and compact disc.
Response. We do not specify the method by which an individual must
receive an electronic copy of the specified health information, only
that Certified EHR Technology be capable of electronically generating
an electronic copy in human readable format and in accordance with one
of the adopted summary record standards. While Certified EHR Technology
must be capable of creating an electronic copy of a patient's health
information as specified in this certification criterion, we encourage
Complete EHR and EHR Module developers to also include the capability
to generate an electronic copy in a manner that allows eligible
professionals (and eligible hospitals as this capability relates to
Complete EHRs and EHR Modules designed for an inpatient setting) to
comply with applicable provisions of the HIPAA Privacy and Security
Rules.
Comment. A commenter requested that we add a requirement for alerts
to prompt users to ask patients if they want a copy of their health
information and include the ability to record whether the information
was actually provided and the patient's preference on the format of the
information. The commenter believed that this requirement is necessary
because many patients are not aware that they can make such a request.
Response. While potentially useful as a reminder, we do not believe
that this capability should be a condition of certification. This
capability would exceed the scope of the relevant meaningful use Stage
1 objective and measure. We also note that Complete EHR and EHR Module
developers are not precluded from including this capability in their
EHR technology.
Comment. A commenter noted that with our emphasis on the
representation of clinical information in the format of a CCD or CCR,
it is unclear whether the certification criterion is enough to meet
patients' expectations.
Response. We recognize that this minimum information may not
satisfy every patient's interests, however, we believe that the
information specified represents a core set of information that most
patients will appreciate is more readily accessible to them.
Comment. A commenter requested clarification on the use of the word
``and'' in the certification criterion and questioned whether it
suggested that the Certified EHR Technology must generate two outputs
to produce an electronic copy (i.e., a copy in human readable format
and a copy as a CCD or CCR). The commenter made this inquiry because it
believed that the certification criterion could be met through the
production of a CCD or CCR with an appropriate style sheet.
Additionally, a commenter stated that it is unclear whether the
electronic copy of the health information provided to patients must be
in a CCD or CCR format for Stage 1 or if alternative formats are
allowed. This commenter recommended that we clarify and distinguish
between the electronic medium carrying the information and the content
enclosed.
Response. Yes, in order to meet this certification criterion,
Certified EHR Technology must be able to generate an electronic copy
that is in human readable format and as a CCD or CCR. If Certified EHR
Technology is capable of generating one copy that could meet both of
these requirements, we would consider that to be a compliant
implementation of this capability.
Section 170.304(g)--Timely Access

[[Page 44631]]

Comments. Many commenters suggested that we should replace the word
``online'' with ``electronic'' to be more clearly aligned with
meaningful use and to not preclude other forms of legitimate electronic
access.
Response. We disagree. The purpose and intent of this certification
criterion and its associated meaningful use objective and measure (as
clarified in the Medicare and Medicaid EHR Incentive Programs final
rule) is to ensure that patients have the ability to access their
health information when they see fit to do so. Accordingly, referring
to ``electronic'' in this certification criterion would not ensure that
Certified EHR Technology provides the desired capability.
Comments. A few commenters asked for clarification on the meaning
of ``procedures'' and type of results to be listed in the electronic
copy, for example, lab test results, problem list, medication lists, or
others specified by the eligible professional.
Response. As discussed above, we have revised this certification
criterion to remove ``procedures'' as well as ``immunizations,'' to be
more consistent with the final meaningful use objective and measure.
Section 170.304(h)--Clinical Summaries

170.205(a)(2)(i)(
A), or, at a
minimum, the
version of the
standard
specified in Sec.

170.205(a)(2)(i)(
B);
(C) One of the
standards
specified in Sec.

170.205(a)(2)(ii)
;
(D) At a minimum,
the version of
the standard
specified in Sec.

170.205(a)(2)(iii
); and
(E) The standard
specified in Sec.

170.205(a)(2)(iv)
.
Final Rule Text: Sec.
170.304(h).
Clinical
summaries. Enable
a user to provide
clinical
summaries to
patients for each
office visit that
include, at a
minimum,
diagnostic test
results, problem
list, medication
list, and
medication
allergy list. If
the clinical
summary is
provided
electronically it
must be:
(1) Provided in
human readable
format; and
(2) Provided on
electronic media
or through some
other electronic
means in
accordance with:
(i) The standard
(and applicable
implementation
specifications)
specified in Sec.
170.205(a)(1)
or Sec.
170.205(a)(2);
and
(ii) For the
following data
elements the
applicable
standard must be
used:
(A) Problems. The
standard
specified in Sec.
170.207(a)(1)
or, at a minimum,
the version of
the standard
specified in Sec.
170.207(a)(2);
(B)Laboratory test
results. At a
minimum, the
version of the
standard
specified in Sec.
170.207(c); and
(C) Medications.
The standard
specified in Sec.
170.207(d).
------------------------------------------------------------------------

Comments. Several commenters requested that ``diagnostic test
results'' be further defined, with one commenter suggesting that lab
results be the minimum and other commenters suggesting a more
comprehensive list, including diagnostic imaging results. Many
commenters requested clarification on the list of procedures and asked
whether this would include only procedures in a recent hospitalization
or historically all procedures performed on the patient. One commenter
questioned why immunization data appeared in the list

[[Page 44632]]

and believed its inclusion was inconsistency with the other items.
Response. We have made revisions to this certification criterion
consistent with the changes that we have already discussed above,
including the removal of certain terms.
Comment. One commenter expressed concern that patient summaries are
most useful when the patient/family literacy and the context of the
health and follow-up care are taken into consideration. The commenter
noted further that as written there is little flexibility in this
certification criterion and that many patients will be overwhelmed with
technical data that comes with little context for understanding it.
Response. We understand the commenter's point; however, we do not
believe that certification (which will validate whether a Complete EHR
or EHR Module can perform this capability in a manner compliant with
the standards adopted by the Secretary) is the appropriate mechanism to
address this commenter's concerns.
Comment. One commenter urged that patient summaries be
affirmatively offered to the patient, without their requesting them,
and that the offer be provided in their native language with the offer
documented in the EHR.
Response. We do not believe that it is within the scope of this
final rule to require eligible professionals to offer patient summaries
to patients.
Comments. Several commenters requested that this rule clarify that
providers would only be responsible for the completeness and accuracy
of the clinical summary to the extent they provided or did not provide
the relevant data (e.g. if another provider has not forwarded data,
they are not responsible).
Response. We do not believe that this behavior can be addressed by
the certification criterion, nor do we believe that it is within the
scope of this final rule.
Section 170.304(i)--Exchange Clinical Information and Patient Summary
Record

------------------------------------------------------------------------
Meaningful use Stage 1 Meaningful use Certification
objectives Stage 1 measures criterion
------------------------------------------------------------------------
Capability to exchange key Performed at Interim Final Rule
clinical information (for least one test Text:
example, problem list, of certified EHR (1) Electronically
medication list, medication technology's receive and display.
allergies, diagnostic test capacity to Electronically
results), among providers of electronically receive a patient's
care and patient authorized exchange key summary record, from
entities electronically. clinical other providers and
information. organizations
including, at a
minimum, diagnostic
tests results,
problem list,
medication list,
medication allergy
list, immunizations,
and procedures in
accordance with Sec.
170.205(a) and
upon receipt of a
patient summary
record formatted in
an alternate
standard specified
in Sec.
170.205(a)(1),
display it in human
readable format.
(2) Electronically
transmit. Enable a
user to
electronically
transmit a patient
summary record to
other providers and
organizations
including, at a
minimum, diagnostic
test results,
problem list,
medication list,
medication allergy
list, immunizations,
and procedures in
accordance with:
The EP, eligible hospital or The EP, eligible (i) One of the
CAH who transitions their hospital or CAH standards
patient to another setting of who transitions specified in Sec.
care or provider of care or or refers their 170.205(a)(1);
refers their patient to patient to
another provider of care another setting
should provide summary of of care or
care record for each provider of care
transition of care or provides a
referral. summary of care
record for more
than 50% of
transitions of
care and
referrals.
(ii) The standard
specified in Sec.

170.205(a)(2)(i)(
A), or, at a
minimum, the
version of the
standard
specified in Sec.

170.205(a)(2)(i)(
B);
(iii) One of the
standards
specified in Sec.

170.205(a)(2)(ii)
;
(iv) At a minimum,
the version of
the standard
specified in Sec.

170.205(a)(2)(iii
); and
(v) The standard
specified in Sec.

170.205(a)(2)(iv)
.
Final Rule Text: Sec.
170.304(i)
(1) Electronically
receive and display.
Electronically
receive and display
a patient's summary
record, from other
providers and
organizations
including, at a
minimum, diagnostic
tests results,
problem list,
medication list, and
medication allergy
list in accordance
with the standard
(and applicable
implementation
specifications)
specified in Sec.
170.205(a)(1) or
Sec.
170.205(a)(2). Upon
receipt of a patient
summary record
formatted according
to the alternative
standard, display it
in human readable
format.
(2) Electronically
transmit. Enable a
user to
electronically
transmit a patient
summary record to
other providers and
organizations
including, at a
minimum, diagnostic
test results,
problem list,
medication list, and
medication allergy
list in accordance
with:
(i) The standard
(and applicable
implementation
specifications)
specified in Sec.
170.205(a)(1)
or Sec.
170.205(a)(2);
and
(ii) For the
following data
elements the
applicable
standard must be
used:
(A) Problems. The
standard
specified in Sec.
170.207(a)(1)
or, at a minimum,
the version of
the standard
specified in Sec.
170.207(a)(2);
(B) Laboratory
test results. At
a minimum, the
version of the
standard
specified in Sec.
170.207(c); and

[[Page 44633]]

(C) Medications.
The standard
specified in Sec.
170.207(d).
------------------------------------------------------------------------

Comments. A few commenters supported our adoption of the Continuity
of Care Record (CCR) standard for patient summary records; a couple
commenters expressed no preference; while many commenters were opposed
to our adoption of CCR as an alternate standard and did not believe
that it was an appropriate selection. Several commenters did not
comment on the merits of adopting CCD and CCR but rather expressed
general concern that adopting two standards would be wasteful, counter-
productive, confusing, time-consuming, and reduce interoperability. Of
the commenters that supported the adoption of CCR, most expressed their
appreciation for the flexibility we had provided. These commenters
contended that CCR was easier to implement and would make it easier for
smaller Complete EHR and EHR Module developers to enter the market and
get certified. One commenter suggested that if we intended to keep both
CCD and CCR as adopted standards that we specify the transactions for
which each standard should apply. This commenter recommended that CCD
be used for exchanging summary records between health care providers
and that CCR be used for exchanging summary records to PHRs. Of the
commenters that opposed our selection of CCR, many of them recommended
that we adopt the CCD standard as the sole standard for summary
records. These commenters principally referenced that the CCD was a
harmonization of CDA and CCR. Some commenters stated that we did not
provide sufficient rationale for adopting CCR and we had reopened a
debate over the two standards that was purportedly previously settled.
Some commenters were concerned that CCR could not support certain
information, particularly, in the hospital setting. These commenters
contended that CCR could not support discharge information and that CCR
cannot provide input into clinical decision support due to the lack of
a common definition of how data is structured. Other commenters
referenced that CCR is not extensible and questioned its ability to be
used for quality reporting. Several commenters recommended that, short
of adopting solely CCD, we provide clearer guidance to the industry
regarding what standard we expect to adopt for future stages of
meaningful use because CCD and CCR are not based on a common
information model.
Response. We appreciate the constructive comments and
recommendations provided by commenters. We address our adoption of the
patient summary record standards in this certification criterion
because we believe that it is the most applicable place to do so.
Section 3004(b)(1) of the PHSA requires the Secretary to adopt an
initial set of standards, implementation specifications, and
certification criteria. Section 3004(b)(2) of the PHSA provided the
Secretary with additional flexibility in considering what standards,
implementation specifications, and certification criteria to adopt in
the initial set. Section 3004(b)(2) states that ``[t]he standards,
implementation specifications, and certification criteria adopted
before the date of the enactment of this title through the process
existing through the Office of the National Coordinator for Health
Information Technology may be applied towards meeting the requirement
of paragraph (1).'' Accordingly, we looked at all of the standards,
implementation specifications, and certification criteria recognized by
the Secretary at any point in time prior to the enactment of the HITECH
Act to determine whether they should be included in this initial set.
Contrary to some commenters statements, the CCR patient summary record
standard was in fact recognized by the Secretary in 2008 (73 FR 3976)
as part of the HITSP Consumer Empowerment Interoperability
Specification (HITSP V2.1 2007 IS03). We understand that in January,
2009, the Secretary recognized (74 FR 3604) an updated HITSP IS03 which
removed the CCR standard. We do not believe that section 3004(b)(2)
precludes the Secretary from considering all possible standards that
were part of the ``prior process.'' To the contrary, we believe the
HITECH Act provided the Secretary with the authority and flexibility to
determine which standards would be best to include in this initial set.
Accordingly, we adopted both the CCR and CCD as patient summary record
standards.
We adopted both standards for a few reasons. First, we are aware,
contrary to some commenters' statements, that a significant segment of
the HIT industry still uses the CCR patient summary record standard and
that some health care providers prefer the CCR over the CCD. For this
reason, we did not want to mandate, at such an early stage, that all of
these early adopters adopt a different summary record standard for the
purposes of meaningful use Stage 1, given that electronic health
information exchange is not required. Second, we understand that in
some circumstances the CCR is easier, faster, and requires fewer
resources to implement than the CCD. We have therefore concluded that
it was appropriate to adopt the CCR standard for patient summary
records in this initial set of standards. Finally, we believe that at
the present time, each standard could equally be used to satisfy the
requirements of meaningful use Stage 1.
Comments. Numerous commenters questioned why we did not adopt the
HITSP C32 implementation specification for the CCD. These commenters
requested that we adopt the C32 implementation specification. They
noted that it had been accepted by the industry, tested and implemented
in several operating environments, and was supported by multiple EHR
technology developers. A few commenters requested additional
clarification regarding our adoption of a ``level 2'' CCD as part of
this standard and stated that use of a level 2 CCD was inconsistent
with our adoption of several adopted vocabulary standards. These
commenters questioned whether we intended to adopt a level 3 CCD. At
least one commenter recommended the removal of our reference to levels.
Another commenter stated that problem list, medication list, medication
allergy list, procedures, etc. are commonly referred to as ``sections''
of the CDA or CCD document, not ``fields.'' They stated that sections
may contain narrative text using the CDA XML format for text, and need
not contain level 3 entries; however, they believed that in order to
use the specified clinical vocabularies found in the Interim Final Rule
in an interoperable fashion, the codes from these selected vocabularies
must appear in level 3 entries. Some commenters also noted this and
recommended that we adopt CCD and specify that the standard must be
implemented in accordance with the HITSP C32 implementation
specification, using the vocabulary standards we had adopted in the
Interim Final Rule. One commenter noted that units of measure are
components of structured entries (CDA

[[Page 44634]]

level 3) in these sections. The commenter supported specified clinical
vocabularies and level 3 CCD because the commenter felt that level 3
would be necessary to properly communicate the information.
Response. We have considered public comments and, in response, have
made two changes. Both are related to our adoption of the CCD standard.
In the Interim Final Rule we explicitly included a reference to ``level
2'' to indicate that we expected a Complete EHR or EHR Module would be
capable of generating a level 2 CCD. After further consideration, we
agree that removing ``level 2'' from the adopted standard will help
clarify the requirements regarding the implementation of CCD. As some
commenters pointed out, the coded data elements we expect to populate
the fields of the CCD would necessitate ``level 3'' entries. Thus, we
have removed the reference to ``level 2.'' We also agree, that the
HITSP C32 (version 2.5) implementation specification for CCD would be
appropriate to adopt. We understand that a majority of Complete EHR and
EHR Module developers who have implemented the CCD standard do so
according to the HITSP C32 implementation specification, and
consequently we do not believe that this would be a significant burden.
We further clarify that, for the purposes of testing and certification,
a compliant CCD implemented according to the HITSP C32 must include the
information for those entries ``required'' by the HITSP C32.
Additionally, we note that as specified by this certification
criterion, we expect that certain health information for which other
certification criteria require to be recorded will be used to populate
certain ``optional'' entries specified by the HITSP C32 implementation
specification (e.g., problems from a problem list should in most cases
be available to populate the ``condition content module'' section of
the HITSP C32). Accordingly, we expect that the test data used to
evaluate whether a Complete EHR or EHR Module can successfully generate
a CCD according to the HITSP C32 will include the data specified in the
certification criterion to populate the ``optional'' entries for which
we have adopted vocabulary standards (e.g., problems). Moreover, from a
consistency perspective, we expect that the same test data referenced
above, which would be used to test and certify a CCD implemented
according to the HITSP C32 would also be used to test and certify a
Complete EHR or EHR Module's ability to populate a CCR. This principle
is also applicable to Complete EHRs and EHR Modules designed for an
inpatient setting.
Comment. One commenter noted that although CVX is identified as the
required standard for interaction with state immunization registries,
no standard for ``immunizations'' is outlined for the clinical summary.
They presumed that CVX could be used for this purpose, but stated that
CVX does not include a dose or date or reaction.
Response. Consistent with the changes we have made elsewhere in the
final rule, we have removed ``immunizations'' from this certification
criterion.
Comment. A commenter suggested that ONC strike the following from
the certification criteria ``and upon receipt of a patient summary
record formatted in an alternate standard specified in Sec.
170.205(a)(1), display it in human readable format.'' Another commenter
stated that data transport is not addressed in the standards, and the
criterion instead refers to ``transmit.'' The commenter suggested
changing the first part of the criterion to ``display'' instead of
``receive,'' and the second part of the criterion to ``export'' instead
of ``transmit.''
Response. We disagree and have not made these changes. We believe
that this certification criterion expresses the capabilities we expect
Certified EHR Technology will include. Furthermore, the action of
``exporting'' a patient summary record does not indicate or require
that Certified EHR Technology is actually capable of transmitting a
patient summary record to Certified EHR Technology implemented by a
different eligible professional or eligible hospital.
Comment. A commenter requested clarification on how historical data
from paper records should be treated for the purpose of certification.
If historical data is on paper, the standards for display are
inapplicable.
Response. Data from paper records would not be a relevant factor
for the purposes of testing and certification. We are concerned with
whether Complete EHRs and EHR Modules have implemented specific
capabilities in compliance with the certification criteria adopted by
the Secretary.
Comments. A couple of commenters requested definition of
``diagnostic test result'' and ``procedures'' in the context of this
criterion.
Response. Again, we do not believe that it is appropriate to define
``diagnostic test result'' in this final rule since the term is derived
from the Medicare and Medicaid EHR Incentive Programs final rule.
Consistent with other revisions we have made in the final rule, we have
removed ``procedures'' from the certification criterion.
Comment. At least one commenter requested that we clarify what
Certified EHR Technology needs to be capable of meeting this
certification criterion. The commenter asked whether the generation of
a CCD or CCR would constitute compliance with this criterion or would
the import and human readable display of both document types be
required.
Response. We clarify that compliance with this certification
criterion can be achieved by demonstrating that the Complete EHR or EHR
Module is capable of receiving and displaying patient summary records
that comply with either patient summary record standard (and if the
alternative standard is used, displaying the non-natively implemented
patient summary record standard in human readable format) and
generating and transmitting a patient summary record according to one
of the patient summary record standards populated with the specified
data types and their applicable standard(s). For example, a Complete
EHR designed to generate patient summary records in the CCD standard
would need to be capable of generating and transmitting patient summary
records in accordance with CCD. Upon receipt of a patient summary
record formatted according to the CCR standard, the Complete EHR must
also be capable of displaying the CCR-formatted patient summary record
in human readable format. We clarify that we also expect that the
Complete EHR designed to natively generate a CCD would be tested and
certified as being capable of properly displaying any CCD that it
receives and have added the term ``display'' in the beginning of the
certification criterion. This change is also applicable to the
certification criterion for Complete EHRs and EHR Modules designed for
an inpatient setting.
Comment. A commenter requested that we clarify how we intended
adopted vocabularies to be used. The commenter queried whether
vocabulary standards that we had adopted apply to EHRs or to
transactions that EHRs conduct. The commenter further requested that we
clarify whether a local/proprietary medication vocabulary could be
mapped to RxNorm, and whether a local/proprietary problem list
vocabulary could be mapped to SNOMED-CT[supreg]. Finally, the commenter
asked if mapping is permitted, and if so, requested that we identify
the subsets of these vocabularies that should be used.

[[Page 44635]]

Response. For purposes of electronically exchanging a patient
summary record, we expect the patient summary record to include health
information that is coded, where applicable, in accordance with adopted
vocabulary standards. Therefore, unless otherwise required in the
context of a meaningful use objective and measure, an eligible
professional (or eligible hospital) would be permitted to map or
crosswalk local/proprietary codes to the adopted vocabulary standards
prior to transmitting a patient summary record. We do not believe that
it would be appropriate to specify subsets of adopted vocabularies at
this time and would seek additional input from the HIT Standards
Committee or public comment prior to specifying vocabulary subsets.
Comment. A commenter stated that the adopted data exchange
standards do not provide for the inclusion of narrative text results,
such as a radiology report, or images of scanned paper documents. The
commenter questions how meaningful use objectives will be achieved
without these and recommends that implementation guidance be issued
that includes specific references to content or vocabulary standards.
Response. We have not adopted standards for radiology reports or
images; however, both the CCR and CCD can be used to convey narrative
text and objects such as scanned documents.
Comments. A couple of commenters requested clarification as to the
testing we expected to occur related to a Complete EHR or EHR Module's
compliance with this certification criterion. These commenters
questioned whether the generation of a CCD and XDS (HITSP/TP13)/FTP/e-
mail of a document would meet the certification criterion requirements.
Response. We clarify that because we have removed the adopted
transport standards, we do not require as a condition of certification
that a specific transport standard be used to transmit a generated CCD.
Comments. One commenter expressly agreed with the expectations of
the certification criterion. Another commenter stated that this
functionality is crucial to support the patient/family-centered medical
home. One commenter recommended that the Certified EHR Technology be
designed so that the amount of data transmitted could be adjusted by
physicians so they do not violate the HIPAA Privacy Rule's ``minimum
necessary'' requirements.
Response. We appreciate commenters' support for this certification
criterion and agree that patient summary records serve a valuable
purpose. Presently, we do not believe that it is appropriate to require
as a condition of certification a capability associated with the HIPAA
Privacy Rule's minimum necessary requirements because such requirements
are generally context specific and determined when a HIPAA covered
entity uses or discloses protected health information or when a HIPAA
covered entity requests protected health information from another HIPAA
covered entity. We do not preclude, however, Complete EHR and EHR
Module developers from including additional features to assist HIPAA
covered entities comply with these and other HIPAA Privacy Rule
requirements.
Comment. A commenter recommended that the summary care record
should include the durable medical equipment and supplies used by the
patient.
Response. Presently, the correlated meaningful use objective and
measure do not specify that a patient summary record must contain
information regarding durable medical equipment. Accordingly, we do not
believe that it would be appropriate to require this as a condition of
certification.
c. Specific Certification for Complete EHRs or EHR Modules Designed for
an Inpatient Setting--Sec. 170.306
Section 170.306(a)--Computerized Provider Order Entry

A commenter recommended that we clarify what is meant by order
entry because the commenter believes that within the confines of many
hospitals, just about any ``order'' can be performed. A few commenters
requested that ``diet orders'' be added to the list of CPOE order types
in order to prevent inconsistent patient care. Another commenter
recommended that speech-language pathology and audiology also be added.
Two commenters noted that the certification criterion specifies a long
list of order types. The commenters recommended that we not attempt to
create an exhaustive list. One of the commenters also noted that no
information is given as to what constitutes adequate functionality for
any of the orders after the first three order types and that some, such
as ``dialysis'' may not be appropriate order functionality for a
general EHR system for hospitals. Both commenters

[[Page 44636]]

recommended that we remove all orders from four through 10 and replace
them with a single provision ``other order types.''
Response. Consistent with the revisions we made to the CPOE
certification criterion associated with Complete EHRs and EHR Modules
designed for an ambulatory setting, we agree with those commenters who
recommended that we specify a minimum core set of orders as a condition
of certification. Accordingly, we identify medication, laboratory, and
radiology/imaging as the minimum types of orders a Complete EHR or EHR
Module designed for inpatient settings must include in order to be
certified. While this certification criterion is now the same as the
certification criterion for Complete EHRs and EHR Modules designed for
an ambulatory setting, we have not combined and moved the CPOE
certification criteria to the general certification criteria section.
Rather, we have kept the certification criteria for CPOE separate
because we anticipate that these certification criteria could in the
future include different requirements, specific to the settings for
which Complete EHRs and EHR Modules are developed.
Comment. A commenter repeated a question it raised with respect to
CPOE for eligible professionals. The commenter requested that we
clarify whether only imaging and radiology reports were intended to be
included in this capability, or, if we intended to include the images
themselves in addition to the imaging reports as part of the
certification criteria. The commenter recommended that we further
clarify the criterion and requested that the DICOM standard be adopted
in the initial set of standards, as an essential step in meeting the
CPOE capability.
Response. We refer this commenter to our previous response above
regarding this issue.
Section 170.306(b)--Record Demographics

Many commenters expressed the same comments with respect to this
certification criterion as they did for the record demographics
certification criterion for Complete EHRs and EHR Modules designed for
ambulatory setting. These commenters recommended the addition of other
demographic information for additional clarity, as discussed above.
Comment. A commenter stated that an EHR is not an appropriate
source of legal documentation for births and deaths because they
indicated that it is not possible to obtain official birth and death
certificates from a provider or hospital.
Response. In concert with and following the changes made to this
meaningful use objective which are explained in more detail in the
Medicare and Medicaid EHR Incentive Programs final rule, we believe
that the changes we have made to this specific part of the
certification criterion address this commenter's concern.
Section 170.306(c)--Clinical Decision Support

[[Page 44637]]

This certification criterion is now exactly the same as the
certification criterion applicable to Complete EHRs and EHR Modules
designed for an ambulatory setting. As a result, our responses and
subsequent changes to the certification criterion above are also
applicable to this certification criterion. While this certification
criterion is now the same as the certification criterion for Complete
EHRs and EHR Modules designed for an ambulatory setting, we have not
combined and moved the clinical decision support certification criteria
to the general certification criteria section because the focus of the
meaningful use objective is different and specific to eligible
hospitals. We also believe that it is useful to keep these
certification criteria separate because we anticipate that these
certification criteria could in the future include different
requirements, specific to the settings for which Complete EHRs and EHR
Modules are developed.
Comments. Some commenters requested that we clarify the meaning of
high priority hospital condition.
Response. We have removed this term, consistent with the other
revisions we made to this certification criterion.
Section 170.306(d)--Electronic Copy of Health Information

------------------------------------------------------------------------
Meaningful use Stage 1 Meaningful use Certification
objective Stage 1 measure criterion
------------------------------------------------------------------------
Provide patients with an More than 50% of Interim Final Rule
electronic copy of their all patients of Text:
health information (including the EP or the Enable a user to
diagnostic test results, inpatient or create an electronic
problem list, medication emergency copy of a patient's
lists, medication allergies, departments of clinical
discharge summary, the eligible information,
procedures), upon request. hospital or CAH including, at a
(POS 21 or 23) minimum, diagnostic
who request an test results,
electronic copy problem list,
of their health medication list,
information are medication allergy
provided it list, immunizations,
within 3 procedures, and
business days. discharge summary
in:
(1) Human readable
format; and
(2) On electronic
media or through
some other
electronic means in
accordance with:
(i) One of the
standards specified
in Sec.
170.205(a)(1);
(ii) The standard
specified in Sec.
170.205(a)(2)(i)(A),
or, at a minimum,
the version of the
standard specified
in Sec.
170.205(a)(2)(i)(B);
(iii) One of the
standards specified
in Sec.
170.205(a)(2)(ii);
(iv) At a minimum,
the version of the
standard specified
in Sec.
170.205(a)(2)(iii);
and
(v) The standard
specified in Sec.
170.205(a)(2)(iv).
Final Rule Text: Sec.
170.306(d).
(1) Enable a user to
create an electronic
copy of a patient's
clinical
information,
including, at a
minimum, diagnostic
test results,
problem list,
medication list,
medication allergy
list, and
procedures:
(i) In human readable
format; and
(ii) On electronic
media or through
some other
electronic means in
accordance with:
(A) The standard (and
applicable
implementation
specifications)
specified in Sec.
170.205(a)(1) or
Sec.
170.205(a)(2); and
(B) For the following
data elements the
applicable standard
must be used:
(1) Problems. The
standard specified
in Sec.
170.207(a)(1) or, at
a minimum, the
version of the
standard specified
in Sec.
170.207(a)(2);
(2) Procedures. The
standard specified
in Sec.
170.207(b)(1) or
Sec.
170.207(b)(2);
(3) Laboratory test
results. At a
minimum, the version
of the standard
specified in Sec.
170.207(c); and
(4) Medications. The
standard specified
in Sec.
170.207(d).
(2) Enable a user to
create an electronic
copy of a patient's
discharge summary in
human readable
format and on
electronic media or
through some other
electronic means.
------------------------------------------------------------------------

Comment. A commenter expressed concern that requiring organizations
to provide anything on electronic media was dangerous and
counterproductive to the HITECH Act's HIPAA Privacy and Security Rule
changes. This commenter also stated that thumb drives and CD/DVD
burners are not available to staff. The commenter recommended that we
remove this certification criterion and adopt a patient portal
requirement in the next round of rulemaking.
Response. While we understand that in certain locations (e.g.,
areas that are readily accessible to patients) health care
professionals do not normally have access to use certain ancillary
features at their workstations, we disagree that requiring
organizations to provide patients with an electronic copy presents
problems related to HITECH modifications to the HIPAA privacy and
security requirements. We do not specify that electronic media such as
thumb drives or CDs must be used. An eligible hospital will be able to
determine, consistent with its security posture, if certain electronic
media is permissible and if so, what types. It will also be able to
determine the means and location through which an electronic copy may
be provided, e.g., at the records management department or office. As
the commenter suggested, a patient portal would be an acceptable
mechanism to provide an electronic copy.
Comment. A commenter stated the certification criterion for
eligible hospitals should be limited to information or tests performed
during the course of a patient visit or hospital stay and include only
summary information of diagnostic test results or of information that
is clinically significant and discovered during the encounter or
admission. Other commenters requested that we clarify

[[Page 44638]]

the reference to procedures. The commenters asked that the regulations
specify whether the EHR technology must enable the user to create an
electronic copy of procedures associated with the most recent
hospitalization, or any historical procedures, or the procedures that
the patient should follow-up to do after discharge.
Response. At a minimum, Certified EHR Technology must be capable of
generating an electronic copy of health information that includes the
elements specified by the certification criterion in an electronic
copy. We do not specify the time period for which the electronic copy
must cover as a condition of certification.
Comment. A commenter requested that we consider eliminating the
reference to standards in this certification criterion for Stage 1 and
focusing on human readable formats.
Response. We disagree, as doing so would run counter to our long
term goals and would not help build the foundation necessary for more
comprehensive capabilities to be added in the future.
Comments. A few commenters noted that neither the CCD nor CCR
contain an applicable section for discharge summary. One commenter
recommended that because the provision of an electronic copy of
discharge instructions was required by another certification criterion,
that discharge instructions should be removed as an element in this
electronic copy.
Response. We reviewed commenters' concerns and agree that there is
no applicable section for a discharge summary. Therefore, we have
revised this certification criterion to reflect that while the other
data elements can be conveyed using the patient summary record
standards (CCR or CCD), we are not requiring the use of any standards
for the discharge summary section. In order to support the meaningful
use objective and measure, however, we note that we do expect Certified
EHR Technology to be capable of providing a electronic copy of a
discharge summary like a patient summary record, in human readable
format and on electronic media or through some other electronic means.
Other electronic means could include, for example, the discharge
summary represented as a CCD plus the ``Hospital Course'' CDA section
or provided as a PDF. We have revised the certification criterion
accordingly.
We note that our responses to the following comments also apply to
other certification criteria that reference procedures.
Comments. A commenter requested clarification as to what we meant
by ``procedures'' for hospitals, because coding for medical procedures
typically occurs after the patient has been discharged. Another
commenter requested that we further clarify the subset of relevant
procedures that should be included. The commenter explained that it
believed including CPT-4 or ICD-9 codes seemed inappropriate for
clinical summaries since these codes are used for ``procedures as
billed,'' and the commenter further asked whether we intended to
include only major procedures.
Response. We clarify that the adopted standard pertains to the
vocabulary that would be used to express procedures, regardless of how
they are selected, or included.
Comments. A commenter stated that with an X12 837 standard
transaction, ICD-9-CM is accompanied by a flag that indicates whether
this code is being used to bill for services meant to eliminate a
diagnosis. The commenter stated that neither the CCR nor the CCD
support such a flag, and concluded that there was no way to know
whether ICD-9-CM codes used in either CCD or CCR could accurately
convey a patient's problems. The commenter also recommended SNOMED-
CT[supreg] should be used with a CCD, because ICD-9 codes have too
little clinical detail. Another commenter favored the use of SNOMED-
CT[supreg] as well and stated that SNOMED-CT[supreg] would be more
clinically accurate and better suited for our purposes. Another
commenter encouraged us to adopt the Current Dental Terminology.
Response. The diagnoses included within the patient summary record
are meant to convey clinically relevant conditions as recorded in
Certified EHR Technology's problem list, rather than billing diagnoses.
While we agree that SNOMED-CT[supreg] provides additional clinical
detail, this is often not available in current practice. Furthermore,
while its use is not precluded, we do not believe that it is necessary
to adopt the Current Dental Terminology as a condition of certification
for all Complete EHRs and EHR Modules.
Comments. A commenter recommended against the adoption of the
alternative standard (CPT-4), unless we subsidized the cost of
licensing CPT-4 as has been done for certain other code sets. Some
commenters expressed concerns about the license requirements and one
commenter stated that the license cost will likely be passed down from
the EHR developer to the eligible professional or eligible hospital.
Some commenters believed that if we intended to keep this alternative
standard, we should make it freely available.
Response. We understand that most current EHR technology already
includes the CPT-4 code sets, and we believe that this indicates that
the licensing costs are not prohibitive. Regardless, we have adopted an
alternative standard to CPT-4, SNOMED-CT[supreg], which is freely
available.
Comment. A commenter noted that the certification criterion
references immunizations but the Medicare and Medicaid EHR Incentive
Programs proposed rule did not include immunizations in the objective.
The commenter suggested that we modify our certification criterion to
match the proposed rule.
Response. We have removed this term, consistent with the previous
revisions we have made to other certification criteria above.
Section 170.306(e)--Electronic Copy of Discharge Information

[[Page 44639]]

Comment. A few commenters expressed support for this certification
criterion. Some commenters requested that we clarify the meaning of
``procedures'' in the context of this certification criterion.
Response. We have revised this certification criterion to be
consistent with the changes to the meaningful use objective and measure
in the Medicare and Medicaid EHR Incentive Programs final rule, which
removes the word ``procedures'' from the meaningful use objective.
Comment. A commenter requested that we clarify the meaning of the
phrase ``at time of discharge'' and specifically, whether it means
literally at the time when a patient is discharged or more broadly,
soon after the discharge occurs, in which case the instructions could
be made available to the patient, for example, through a web portal.
Response. This phrase is derived from the Medicare and Medicaid EHR
Incentive Programs final rule, and CMS has provided clarifying remarks
related to this comment.
Comment. One commenter recommended that the certification criterion
include consideration of the patient's preferred language.
Response. Like our prior responses, we do not believe that
requiring this information is appropriate or necessary to include as a
condition of certification. However, we do not preclude Complete EHRs
and EHR Modules from being designed to reference a patient's preferred
language.
Section 170.306(f)--Exchange Clinical Information and Summary Record

------------------------------------------------------------------------
Meaningful use Stage 1 Meaningful use Certification
objectives Stage 1 measures criterion
------------------------------------------------------------------------
Capability to exchange key Performed at Interim Final Rule
clinical information (for least one test Text:
example, discharge summary, of certified EHR (1) Electronically
procedures, problem list, technology's receive and display.
medication list, medication capacity to Electronically
allergies, diagnostic test electronically receive a patient's
results), among providers of exchange key summary record from
care and patient authorized clinical other providers and
entities electronically. information. organizations
including, at a
minimum, diagnostic
test results,
problem list,
medication list,
medication allergy
list, immunizations,
procedures, and
discharge summary in
accordance with Sec.
170.205(a) and
upon receipt of a
patient summary
record formatted in
an alternate
standard specified
in Sec.
170.205(a)(1),
display it in human
readable format.
(2) Electronically
transmit. Enable a
user to
electronically
transmit a patient's
summary record to
other providers and
organizations
including, at a
minimum, diagnostic
results, problem
list, medication
list, medication
allergy list,
immunizations,
procedures, and
discharge summary in
accordance with:
(i) One of the
standards
specified in Sec.
170.205(a)(1);
The EP, eligible hospital or The EP, eligible (ii) The standard
CAH who transitions their hospital or CAH specified in Sec.
patient to another setting of who transitions
care or provider of care or or refers their 170.205(a)(2)(i)(
refers their patient to patient to A), or, at a
another provider of care another setting minimum, the
should provide summary of of care or version of the
care record for each provider of care standard
transition of care or provides a specified in Sec.
referral. summary of care
record for more 170.205(a)(2)(i)(
than 50% of B);
transitions of
care and
referrals.
(iii) One of the
standards
specified in Sec.

170.205(a)(2)(ii)
;
(iv) At a minimum,
the version of
the standard
specified in Sec.

170.205(a)(2)(iii
); and
(v) The standard
specified in Sec.

170.205(a)(2)(iv)
.
Final Rule Text: Sec.
170.306(f).
(1) Electronically
receive and display.
Electronically
receive and display
a patient's summary
record from other
providers and
organizations
including, at a
minimum, diagnostic
test results,
problem list,
medication list,
medication allergy
list, and procedures
in accordance with
the standard (and
applicable
implementation
specifications)
specified in Sec.
170.205(a)(1) or
Sec.
170.205(a)(2). Upon
receipt of a patient
summary record
formatted according
to the alternative
standard, display it
in human readable
format.
(2) Electronically
transmit. Enable a
user to
electronically
transmit a patient's
summary record to
other providers and
organizations
including, at a
minimum, diagnostic
results, problem
list, medication
list, medication
allergy list, and
procedures in
accordance with:
(i) The standard
(and applicable
implementation
specifications)
specified in Sec.
170.205(a)(1)
or Sec.
170.205(a)(2);
and
(ii) For the
following data
elements the
applicable
standard must be
used:
(A) Problems. The
standard
specified in Sec.
170.207(a)(1)
or, at a minimum,
the version of
the standard
specified in Sec.
170.207(a)(2);
(B) Procedures.
The standard
specified in Sec.
170.207(b)(1)
or Sec.
170.207(b)(2);
(C) Laboratory
test results. At
a minimum, the
version of the
standard
specified in Sec.
170.207(c); and
(D) Medications.
The standard
specified in Sec.
170.207(d).
------------------------------------------------------------------------

[[Page 44640]]

Overall this certification criterion is very similar to the
certification criterion applicable to Complete EHRs and EHR Modules
designed for an ambulatory setting. As a result, our responses and
subsequent changes to the certification criterion above are also
applicable to this certification criterion. Below are the comments that
are unique to this certification criterion.
Comment. A few commenters requested clarification on what is meant
by the term ``discharge summary.'' The commenter stated that neither
the CCD nor the CCR has a document section or module for a ``discharge
summary.'' One commenter suggested that we either define the term or
remove it. At least one commenter suggested that discharge summary be
initially permitted to be an unstructured CDA instead of requiring the
use of a CCD. As an alternative, it was suggested that the CCD combined
with the ``Hospital Course'' CDA section be allowed to qualify as the
discharge summary.
Response. As noted in one of our responses above, we recognize that
neither CCD nor CCR specifically supports the inclusion of discharge
summary. In the Medicare and Medicaid EHR Incentive Program final rule,
CMS references discharge summary in the meaningful use objective as an
example of ``key clinical information'' but further clarifies within
the preamble of that rule that it is up to an eligible professional or
eligible hospital to determine what constitutes key clinical
information. In that regard, CMS notes that we specify the minimum set
of information that Certified EHR Technology must be capable of
electronically transmitting. Given our prior statements regarding the
ability of CCD and CCR to support the inclusion of the discharge
summary and the principle expressed by CMS that we specify a minimum
set of information in the adopted certification criterion, we believe
that in this instance it is appropriate to exclude discharge summary
from the certification criterion.
Section 170.306(g)--Reportable Lab Results

Comment. One commenter requested that we clarify the meaning of
``LOINC when LOINC codes have been received from a laboratory.'' The
commenter questioned whether the information exchange for which this
criterion would apply is solely exchange within an organization or only
between organizations.
Response. For a more detailed response to this request for
clarification, we refer to the relevant comments and responses relating
to the ``incorporate laboratory test results'' certification criterion,
where we discuss this issue at length.
Comment. One commenter stated that it believed the standards we
have adopted are too general or at too high a level for vendors to be
able to implement them uniformly. This commenter suggested that we
clarify when lab results should be transmitted, for instance upon the
occurrence of particular trigger events, or in response to specific
messages, and in accordance with a reporting time table. The commenter
queries, for example, if EHR systems should use discharge as a trigger
for the transmission of a reportable condition using encounter level
demographic segments, or whether EHR systems should provide a periodic
batch reporting of reportable conditions (e.g. daily or weekly).
Response. We clarify that the certification criterion does not
specify, and is not intended to specify, the requirements for how the
reports are to be triggered nor the periodicity of the reporting
requirements. As a certification criterion, it only specifies
capabilities necessary for certification.
Comment. A commenter recommended that we clarify the meaning of
``reportable'' in the certification criterion.
Response. Each public health jurisdiction maintains its list of
diseases or conditions that require notification of public health
authorities by law. The CDC and the Council of State and Territorial
Epidemiologists also maintain a list of nationally notifiable
conditions (http://www.cdc.gov/ncphi/disss/nndss/phs/infdis.htm). We
reiterate, the adoption of this certification criterion is not intended
to affect applicable Federal or state law concerning public health
authority notification requirements.
Comments. Many commenters requested further specification of the
data format for transmitting information to public health agencies.
Most of these comments recommended HL7 2.5.1 version, although at least
one commenter noted that HL7 2.3.1 was still being used by some public
health agencies. Another commenter suggested that either standard be
allowed to accommodate for the variation in public health departments'
ability to receive these reports. Many commenters raised the concern
that the criterion appears to place the burden of compliance on the
sender. This problem could be compounded if states and localities adopt
multiple standards, which would make both compliance and certification
testing difficult and burdensome. Several commenters raised the concern
that some public health agencies are not capable of receiving
electronic data. One commenter suggested removing the language ``or
applicable state-designated standard format'' and directly specifying
the format in the final rule. One commenter suggested having the states
agree upon a standard format. At least one commenter requested
additional clarity, suggesting that the HL7 message profile types be
specified: ORU message for public health reporting, ADT for syndromic
surveillance, and VXU for immunizations. One commenter also requested
that we clarify whether HL7 V3 constructs would be allowable.
Response. We agree with the majority of commenters, who requested
greater specificity for this certification criterion.

[[Page 44641]]

Many of these commenters suggested adopting implementation
specifications for the adopted standard (HL7 2.5.1). In response to
those comments, and to more fully support this meaningful use objective
and measure which specify the submission of laboratory results to
public health, we have decided to adopt the HL7 Version 2.5.1
Implementation Guide: Electronic Laboratory Reporting to Public Health,
Release 1 (US Realm) to further constrain how HL7 2.5.1 is formatted
for the purposes of submitting laboratory test results to public
health. With respect to the comment regarding HL7 V3, we do not believe
that the industry and public health departments are currently able to
support the HL7 V3 constructs on a widespread basis and are therefore
not adopting them.
Comment. One commenter suggested adding the term ``modify'' to the
certification criterion, while one commenter requested clarification on
the term ``retrieve.''
Response. Consistent with the changes we have made to the other
certification criterion, we have included the word ``modify.''
Comments. A few commenters suggested the use of SNOMED-CT[supreg]
and UCUM for reporting.
Response. We do not believe that the industry and public health
departments are currently able to support the use of SNOMED-CT[supreg]
and UCUM for reporting on a widespread basis.
d. Adoption and Realignment of Certification Criteria To Support the
Final Requirements for Meaningful Use Stage 1.
In the Interim Final Rule, we noted that the Secretary was adopting
an initial set of standards, implementation specifications, and
certification criteria to ``establish the capabilities and related
standards that certified electronic health record (EHR) technology will
need to include in order to, at a minimum, support the achievement of
the proposed meaningful use Stage 1.'' We also noted that the reason we
routinely referred to eligible professionals and eligible hospitals in
the Interim Final Rule was ``because we have closely aligned the
initial set of standards, implementation specifications, and
certification criteria adopted by this rule to focus on the
capabilities that Certified EHR Technology must be able to provide in
order to support the achievement of the proposed criteria for
meaningful use Stage 1 by eligible professionals and eligible hospitals
under the Medicare and Medicaid EHR Incentive Programs.'' In this
regard, and as many commenters acknowledged and expressed in their
comments, this final rule and the Medicare and Medicaid EHR Incentive
Program final rule are closely and inextricably linked. Recognizing the
unique connection between these two rules, some commenters went so far
as to issue CMS and ONC a single set of comments recommending changes
to both rules in context. Many other commenters treated both rules as
almost being one in the same, acknowledging that a change in Medicare
and Medicaid EHR Incentive Programs final rule would need to be
reflected in this final rule. Other commenters submitted comments to
ONC on the Medicare and Medicaid EHR Incentive Programs proposed rule,
and to CMS on the Interim Final Rule. As we discussed previously, CMS
and ONC shared these comments between the offices and we included
within our review all comments that could be reasonably identified as
comments on the Interim Final Rule.
The following three certification criteria have been adopted as
part of the initial set of certification criteria, implementation
specifications, and standards in order to realign the adopted
certification criteria with the final meaningful use Stage 1
requirements and to ensure that Certified EHR Technology will provide
such capabilities.
Record Advance Directives
In the Medicare and Medicaid EHR Incentive Programs proposed rule,
the Department explained that the HIT Policy Committee had recommended
that eligible hospitals ``record advance directives.'' Due in part to
the ambiguity of the recommendation, the Department discussed but did
not include the objective ``Record Advance Directives'' for the reasons
explained by CMS. In its final rule, however, the Department stated
that based on comments received as well as resolution of some of the
ambiguity associated with the measure, CMS was including this objective
among its meaningful use Stage 1 objectives. The Department noted that
some commenters reported that having this information available would
allow eligible hospitals to make decisions that were better aligned
with the patient's express wishes. The ``record advance directives''
certification criterion would ensure that Certified EHR Technology
enables users to electronically record whether a patient has an advance
directive, which in turn will help ensure that a patient's wishes are
known and can be followed.

Comments. The Department received several comments that we should
include the capability to record advance directives as part of
meaningful use of Certified EHR Technology and, specifically, that it
should be a requirement that pertains to eligible hospitals. Other
commenters reported that having this information available for the
patient would allow eligible hospitals to make decisions that were
better aligned with the patient's express wishes. The HIT Policy
Committee clarified that the purpose of the meaningful use Stage 1
measure would be to indicate whether a patient has an advanced
directive. Furthermore, the committee recommended limiting this measure
to patients 65 and older.
Response. We agree that the capability for a Complete EHR or EHR
Module designed for an inpatient setting should be included as a
condition of certification. Including this certification criterion in
this final rule will enable eligible hospitals to meet a meaningful use
objective they would otherwise not have been able to meet. We do not
believe that the capability we have required will be a significant
burden for Complete EHR and EHR Module developers and assume that some
already have this or a similar type of capability already built in.

[[Page 44642]]

Patient-Specific Education Resources
The Medicare and Medicaid EHR Incentive Programs proposed rule
discussed but did not include the objective of providing ``access to
patient specific education resources upon request,'' primarily because
of the belief that there was a paucity of knowledge resources
integrated within EHRs that are also widely available. CMS also noted
that the ability to provide patient education resources in multiple
languages might be limited. In response to comments, the Medicare and
Medicaid EHR Incentive Programs final rule included this objective and
a related measure, finding that the availability of education resources
linked to EHRs is in fact more widely available than the Department had
previously indicated in the proposed rule. The Medicare and Medicaid
EHR Incentive Programs final rule expressly requires that more than 10
percent of all unique patients seen by the EP or admitted to the
eligible hospital's or CAH's inpatient or emergency department (POS 21
or 23) during the EHR reporting period must be provided patient-
specific education resources in order to meet the related meaningful
use stage 1 objective. To support the achievement of this objective and
measure, we are therefore adopting as a certification criterion the
capability of enabling a user to electronically identify and provide
patient-specific education resources that include particular types of
data elements.

Comments. The Department received many comments, including comments
from both the HIT Policy Committee and MedPAC, that this capability
should be included among the certification criteria for Certified EHR
Technology, to enable eligible professionals and eligible hospitals to
achieve meaningful use. Commenters indicated that the availability of
education resources that could be linked to EHR technology is widely
available.
Response. We agree that this capability should be included as a
certification criterion for a Complete EHR or EHR Module designed for
an ambulatory or inpatient setting. Accordingly, we have included this
certification criterion in the general certification section. We
clarify that we do not specify how Certified EHR Technology must be
used to provide such resources to a patient. That is, such resources
could be printed out, faxed, or e-mailed.
Automated Calculation of Percentage-Based Meaningful Use Measures
While the Interim Final Rule only expressly provided for the
calculation of BMI and the calculation and electronic display of
certain quality measures, the Department's operating assumption in the
Interim Final Rule was that Certified EHR Technology would provide for
the automated calculation of meaningful use Stage 1 measures. The
Medicare and Medicaid EHR Incentive Programs proposed rule for instance
stated that CMS and ONC had worked together to define certain terms,
such as numerator and denominator, for the calculation of percentages
to demonstrate the successful attainment of the meaningful use
objectives. The Medicare and Medicaid EHR Incentive Programs final rule
confirmed that ``the ability to calculate the measure is included in
certified EHR technology.'' To make explicit the Department's operating
assumption, to confirm some commenters' original understanding, and to
respond to other commenters' points, we are adopting the following
certification criterion regarding the automated calculation of
percentage-based meaningful use measures.

Comments. The Department received several comments noting that
Certified EHR Technology should be expressly required, as a condition
of certification, to automatically calculate the meaningful use
measures for which eligible professionals and eligible hospitals would
need to report percentages to CMS or States at the end of an EHR
reporting period. Some commenters explicitly noted that ONC should
require the automated calculation of certain measures as a condition of
certification. Commenters pointed out that this was already a
certification requirement for clinical quality measures and it would be
inconsistent not to require automated calculation for the functionality
measures as part of certification. Many commenters expressed concerns
about the difficulties of capturing the denominators for the meaningful
use measures that required percentage calculations. They pointed out
that the formulas CMS identified for many objectives would require
providers to conduct labor-intensive counts of paper documents such as
prescriptions or laboratory results in order to compute the
denominators of the percentage based measures. Commenters also
indicated that if Certified EHR Technology did not include this
capability that it would dramatically increase the burden on potential
meaningful users to demonstrate meaningful use and could potentially
serve as a factor in their decision to participate in the Medicare and
Medicaid EHR incentive programs.

[[Page 44643]]

Response. We agree with commenters that unless we expressly adopt a
certification criterion to specify that Certified EHR Technology must
be capable of performing percentage-based calculations for meaningful
use measures that it would present a significant burden to eligible
professionals and eligible hospitals and could deter them from
participating in the Medicare and Medicaid EHR incentives programs.
Accordingly, we believe that it is critical to adopt the certification
criterion specified above. We clarify that Certified EHR Technology
must be capable of calculating all denominators for those meaningful
use measures which are percentage-based and for which CMS requires an
eligible professional or eligible hospital to submit the results at the
end of an EHR reporting period. (CMS provides a detailed discussion in
the Medicare and Medicaid EHR Incentive Programs final rule on
denominators.) We note that as discussed in the Medicare and Medicaid
EHR Incentive Programs final rule under the heading ``Discussion of the
Burden Created by the Measures associated with the Stage 1 Meaningful
Use Objectives,'' an eligible professional or eligible hospital is
responsible for verifying that the denominator produced by Certified
EHR Technology is complete. The eligible professional or eligible
hospital would be expected to know whether data had been incorrectly
entered into Certified EHR Technology or whether all patient records
were included in Certified EHR Technology. For Stage 1 meaningful use
criteria, CMS identifies these measures in the table in its final rule
with the headings: ``Measures with a Denominator of Unique Patients
Regardless of Whether the Patient's Records Are Maintained Using
Certified EHR Technology'' and ``Measures with a Denominator of Based
on Counting Actions for Patients whose Records are Maintained Using
Certified EHR Technology.'' We do not require, as a condition of
certification, that a Complete EHR or EHR Module provide results for
the meaningful use measures that only require a ``yes/no'' attestation
since these results should be readily apparent. These measures are also
identified by CMS in the table in its final rule with the heading
``Measures Requiring Only a Yes/No Attestation.'' We do not believe
that adoption of this certification criterion poses a significant
technical challenge. Rather, we believe that this capability will
provide Complete EHR and EHR Modules developers with a platform from
which to innovate and compete regarding, for example, the EHR products'
ease of use.

E. Additional Comments

Comments. In response to our request for public comment, several
commenters recommended that we adopt certification criteria requiring
technical capabilities to provide greater access for people with
disabilities. These commenters also pointed to a few standards
currently being used to assure accessibility, including the Web Content
Accessibility Guidelines (WCAG 2.0) and the Electronic and Information
Technology Accessibility Standards. The commenters requested that we
coordinate more with the disability communities on accessibility and
usability and how HIT will impact members of this community. The
commenters requested that we clarify the applicability of accessibility
standards and that we add technological non-discrimination as a goal to
guide future standards work.
Response. We appreciate the thorough and thoughtful comments
provided related to accessibility. We believe that HIT has the
potential to provide all persons with more efficient access to their
health information. In that regard, we solicited public comment on the
issue of accessibility and certification to garner more information
about available standards and to begin a path forward that included
these standards as part of the overall standards adoption process. We
reiterate what we discussed in the interim final rule when we provided
the context for our solicitation of public comment on accessibility.

Nothing required by this interim final rule should be construed
as affecting existing legal requirements under other Federal laws.
While the capabilities provided by Certified EHR Technology may
assist in the compliance with certain legal requirements, they do
not in any way remove or alter those requirements * * *. As another
example, in providing patients with access to their online health
information, it is important to note that the accessibility
requirements of the Americans with Disabilities Act of 1990 and
Section 504 of the Rehabilitation Act of 1973 still apply to
entities covered by these Federal civil rights laws. Additionally,
Title VI of the Civil Rights Act of 1964 and its implementing
regulations protect persons from unlawful discrimination on the
basis of race, color and national origin. Under Title VI and its
implementing regulations, recipients of Federal financial assistance
must take reasonable steps to ensure meaningful access to their
programs, services, and activities by eligible limited English
proficient persons.

While we have not yet adopted specific accessibility standards as a
condition of certification, we believe that the adoption of such
standards in a future rulemaking would prove beneficial, to enable all
persons (including health care providers with disabilities) to have
equitable access to EHR technology and the electronic information it
generates. In the interim, we encourage Complete EHR and EHR Module
developers to design their EHR technology with the needs of users of
assistive technology in mind, and remind eligible professionals and
eligible hospitals who seek to adopt Certified EHR Technology to review
and comply with applicable legal obligations regarding accessibility.
Among the ways of designing certain capabilities with accessibility in
mind, we would encourage Complete EHR and EHR Module developers to
consider implementing, for example, the WCAG 2.0 \8\ when providing
web-oriented content so that it is more accessible to persons with
disabilities. We expect the HIT Standards Committee to identify
accessibility-oriented standards \9\ when it issues recommendations
regarding the standards that the Secretary should adopt in future
years.
---------------------------------------------------------------------------

\8\ http://www.w3.org/TR/WCAG20/.
\9\ As previously mentioned, there are several accessibility
standards for electronic and information technology currently in
use. For example, Section 508 of the Rehabilitation Act requires
Federal agencies to ensure that electronic and information
technology that they develop, procure, maintain, or use is
accessible to persons with disabilities and authorizes the
Architectural and Transportation Barriers Compliance Board (Access
Board) to promulgate standards setting forth the technical and
functional performance criteria necessary to implement the
requirements of Section 508. Information regarding the Electronic
and Information Technology Standards can be found on the Access
Board's Web site at http://www.access-board.gov/508.htm.
---------------------------------------------------------------------------

Comments. Several commenters made recommendations related to
standards that we could adopt to support future stages of meaningful
use. Other commenters expressed concerns related to the ``candidate
Stage 2 standards'' that we referenced in the Interim Final Rule.
Finally, commenters requested that Certified EHR Technology include
specific capabilities that had no relationship to meaningful use.
Response. We have reviewed these comments and appreciate the
forethought provided by commenters. Given that these suggestions were
not germane to the policies associated with the Interim Final Rule we
have not considered them for the purposes of promulgating this final
rule.

F. Comments Beyond the Scope of This Final Rule

In response to the Interim Final Rule, some commenters chose to
raise issues that are beyond the scope of our

[[Page 44644]]

proposals. We do not summarize or respond to those comments in this
final rule.

IV. Collection of Information Requirements

This final rule contains no new information collection requirements
subject to review by the OMB under the Paperwork Reduction Act (PRA).

V. Regulatory Impact Analysis

A. Introduction

We have examined the impacts of this final rule as required by
Executive Order 12866 on Regulatory Planning and Review (September 30,
1993, as further amended), the Regulatory Flexibility Act (RFA) (5
U.S.C. 601 et seq.), section 202 of the Unfunded Mandates Reform Act of
1995 (2 U.S.C. 1532) (UMRA), Executive Order 13132 on Federalism
(August 4, 1999), and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). A regulatory impact
analysis (RIA) must be prepared for major rules with economically
significant effects ($100 million or more in any one year). We have
determined that this final rule is not an economically significant rule
because we estimate that the costs to prepare Complete EHRs and EHR
Modules to be tested and certified will be less than $100 million per
year. Nevertheless, because of the public interest in this final rule,
we have prepared an RIA that to the best of our ability presents the
costs and benefits of the final rule.
The RFA requires agencies to analyze options for regulatory relief
of small businesses if a rule has a significant impact on a substantial
number of small entities. For more information on Small Business
Administration's (SBA's) size standards, see the SBA's Web site.\10\ We
examine the burden of the final regulation in Section V.D below.
---------------------------------------------------------------------------

\10\ http://sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf.
---------------------------------------------------------------------------

Section 202 of the UMRA also requires that agencies assess
anticipated costs and benefits before issuing any rule whose mandates
require spending in any one year of $100 million in 1995 dollars,
updated annually for inflation. In 2010, that threshold is
approximately $135 million. This rule will not impose an unfunded
mandate on States, tribal government or the private sector of more than
$135 million annually.
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct costs of compliance on
State and local governments, preempts State law, or otherwise has
Federalism implications. We do not believe that the final rule imposes
substantial direct compliance costs on State and local governments,
preempts State law, or otherwise has Federalism implications.

B. Why is this rule needed?

Section 3004(b)(1) of the PHSA requires the Secretary to adopt an
initial set of standards, implementation specifications, and
certification criteria. On January 13, 2010, the Secretary published in
the Federal Register an interim final rule to adopt the initial set of
standards, implementation specifications, and certification criteria.
This final rule has been published to amend previously adopted
standards, implementation specifications, and certification criteria in
order to realign such standards, implementation specifications, and
certification criteria with final meaningful use Stage 1 objectives and
measures, and to respond to public comments received. Certification
criteria and associated standards and implementation specifications
will be used to test and certify Complete EHRs and EHR Modules in order
to make it possible for eligible professionals and eligible hospitals
to adopt and implement Certified EHR Technology. The use of Certified
EHR Technology is one of the requirements an eligible professional or
eligible hospital needs to meet in order to qualify for an incentive
payment under the Medicare and Medicaid EHR Incentive Programs.

C. Executive Order 12866--Regulatory Planning and Review Analysis

1. Comment and Response
Comments. A few commenters offered opinions related to the cost
estimates included in the Interim Final Rule. One commenter disagreed
with our approach. This commenter contended that our analysis followed
a simplistic, linear model that did not account for the other potential
costs that Complete EHR and EHR Module developers and health care
providers would bear. The commenter suggested that we address other
costs in our calculations including: whether a Complete EHR or EHR
Module developer has adequate resources available to modify its HIT in
order to prepare for certification; the loss of a Complete EHR or EHR
Module developer's net worth and dislocation of jobs if it fails and
goes out of business; and the resulting impacts that would occur if a
Complete EHR and EHR Module developer went out of business and left
behind customers (some or many of which could then be ineligible for
Medicare and Medicaid EHR Incentive Programs) with unsupported HIT.
Another commenter questioned the cost estimates in the Interim Final
Rule, but acknowledged that it was not prepared to offer alternative
cost estimates. The commenter did state that it believed our dollar
values seemed low and that the gap of 25%, representing previously
CCHIT-certified-EHRs that will need additional preparation to be tested
and certified to the certification criteria adopted by the Secretary,
also seemed low. The commenter suggested a 40-50% gap. The commenter
also recommended that we revise our cost estimates based on the
certification criteria in the final rule to: consider costs associated
with workflow redesign within an eligible professional or eligible
hospitals environment; factor in the costs for ``interoperability
implementation'' (no further explanation was provided); account for the
costs associated with implementing the clinical quality measures
certification criterion; account for the costs for hardware capable of
supporting the adopted security requirements; and factor in the costs
for internal resources and customer resources. One commenter noted that
the cost related to dentistry EHR technology may be higher due to what
it perceived as a lack of commercially available EHR technology and
that additional costs may be incurred by dentistry EHR developers that
are not as familiar as EHR developers for other health providers with
the certification criteria adopted by the Secretary. One commenter
agreed with the $10,000 to $250,000 cost range we estimated for the
per-certification-criterion preparation, while another commenter seemed
to misinterpret this estimate as being the total cost to prepare a
Complete EHR or EHR Module. This commenter offered that it could take
over 2,500 hours to prepare a Complete EHR for certification. One
commenter appeared to associate the costs related to the preparation of
a Complete EHR to be tested and certified with the actual cost to be
tested and certified, but nonetheless expressed concern that we had
estimated that it would cost a Complete EHR developer whose EHR
technology had not previously been certified no less than

[[Page 44645]]

$1.2 million to become compliant with the Interim Final Rule's
requirements. The commenter requested that HHS provide assistance to
EHR vendors with revenues of less than $1 million in order to help
offset the costs of the certification process.
Response. We appreciate commenters' recommendations and suggestions
related to our cost analysis. While we understand why some commenters
recommended additional factors for us to consider as part of our
analysis, we do not believe many of those factors are relevant for two
primary reasons: (1) We believe that it is improbable that this rule
will result in the outcomes speculated and their associated costs; and
(2) the factors contributing to or causing the increased costs are
outside the scope of this rule (e.g., hypothetical business failure and
job loss, workflow redesign) and could not be reasonably or accurately
estimated. In this regard, we reiterate what we stated in the Interim
Final Rule related to how costs would be estimated. ``This interim
final rule estimates the costs commercial vendors, open source
developers, and relevant Federal agencies will incur to prepare
Complete EHRs and EHR Modules to be tested and certified to adopted
standards, implementation specifications, and certification criteria.
The Medicare and Medicaid EHR Incentive Programs proposed rule
estimates the impacts related to the actions taken by eligible
professionals or eligible hospitals to become meaningful users,
including purchasing or self-developing Complete EHRs or EHR Modules.
The HIT Certification Programs proposed rule estimates the testing and
certification costs for Complete EHRs and EHR Modules.'' Accordingly,
we disagree with the commenter who contended that our estimates were
too simplistic and linear. We believe that in the absence of any
additional data or an alternative model (which no commenter provided),
our assumptions are sound and our analysis is reasonable for estimating
the costs associated with complying with this final rule.
We believe that it is important to note to commenters that
compliance with this final rule is voluntary and as such, seeking to
have a Complete EHR or EHR Module certified is voluntary. A Complete
EHR or EHR Module developer is not required to comply with this final
rule in order to operate its business. Rather, a Complete EHR or EHR
Module developer will need to rely upon this final rule only if it
ultimately seeks to have its EHR technology tested and certified as
being compliant with the certification criteria adopted by the
Secretary. Consequently, if a Complete EHR or EHR Module developer does
not have the resources available to redesign its Complete EHR or EHR
Module to incorporate the standards and implementation specifications
or meet the certification criteria adopted in this rule, this rule does
not create any new expenses for its business. Given this clarification,
we believe that our estimates represent a higher than likely number of
Complete EHR and EHR Module developers that will prepare their HIT to
be tested and certified to the certification criteria adopted by the
Secretary, and thus, the highest potential cost.
We considered whether an hourly preparation cost should replace the
assumptions we made in the Interim Final Rule, but found it difficult
to determine what reasonable low and high hour ranges would be even if
we were to assume 2500 hours to be the average. Further, for the
purposes of testing this alternative approach, we assumed that it would
be reasonable for the employees of a Complete EHR or EHR Module
developer responsible for preparing a Complete EHR or EHR Module for
testing and certification to be paid equivalent to a Federal employee
with a Federal Salary Classification of GS-15 Step 1 ($59.30/hr plus
21.35/hr for benefits) given the educational and professional
experience we believe would be necessary to lead this type of activity.
Multiplying the total hourly rate by the 2500 hours yields a total
preparation cost of approximately $201,000. Thus, even if we were to
assume that a high average for preparation of a Complete EHR or EHR
Module would be double what the commenter stated, it would only
represent close to $400,000 in preparation costs. Accordingly, we
believe that our estimates are in fact comparatively high and the
estimate range covers a wide range of possibilities.
In the absence of additional data or any evidence to the contrary
from public comment to guide revisions to our estimates, we are
finalizing them according to the data and assumptions we identified in
the Interim Final Rule. We believe that our estimates are sound, based
on reasonable assumptions and data, and sufficiently accommodate
varying costs for different types of Complete EHR and EHR Module
developers. We believe that the additional clarity and specificity we
have provided for some certification criteria and the removal of some
required capabilities would further contribute to lowering the cost
estimates for complying with this final rule. Consequently, we
anticipate actual costs will fall somewhere between the low and mid-
point ranges of our estimates rather than between the mid-point and
high ranges of our estimates.
Finally, with respect to the commenter who expressed concern
regarding the total costs associated with developing a Complete EHR
which had never been certified, we note that our estimates should not
be construed to imply that a Complete EHR developer would have to spend
over $1 million in order to prepare a Complete EHR. To the contrary,
had we calculated our low range for preparing a Complete EHR based on
the absolute low we estimated for a per certification cost ($10,000),
the total cost would have only been $240,000, or one-fifth the cost we
estimated in the Interim Final Rule. The approach we took in the
Interim Final Rule was designed to be inclusive of a middle range of
possibilities, but was never meant to preclude the possibility that a
Complete EHR developer could design a Complete EHR that was compliant
with the certification criteria adopted by the Secretary for less than
we estimated. Also in response to the commenter's request, we do not
believe that it would be appropriate, nor are we authorized, to provide
subsidies to Complete EHR or EHR Module developers for the costs of the
preparing a Complete EHR or EHR module for testing and certification.
2. Executive Order 12866 Final Analysis
a. Costs
This final rule adopts standards, implementation specifications,
and certification criteria and consequently establishes the
capabilities that Complete EHRs or EHR Modules will need to demonstrate
in order to be certified. Our analysis focuses on the direct effects of
the provisions of this final rule--the costs incurred by Complete EHR
and EHR Module developers to prepare Complete EHRs and EHR Modules to
be tested and certified in accordance with the certification criteria
adopted by the Secretary. That is, we focus on the technological
development costs necessary to include the capabilities in a Complete
EHR or EHR Module that will be compliant with the certification
criteria adopted by the Secretary. Again, as noted above, the actual
cost a Complete EHR or EHR Module developer will incur to be tested and
certified is accounted for in our certification programs final rules.
As we noted in the Interim Final Rule, we analyzed previously
developed CCHIT ambulatory and inpatient

[[Page 44646]]

certification criteria and believe that many of those criteria, but not
all, require the exact same capabilities as the certification criteria
adopted by the Secretary at 45 CFR 170.302, 45 CFR 170.304, and 45 CFR
170.306. Generally speaking, we believe this overlap includes most of
the clinically oriented capabilities required by the certification
criteria adopted by the Secretary. Accordingly, we believe that a
significant number of previously CCHIT-certified-EHRs will only incur
moderate costs to prepare for certification. For the purpose of
estimating costs, we presume that previously CCHIT-certified-EHRs
include the functionality to meet the definition of a Complete EHR. As
a result, for our estimates in Table 1, we anticipate that these
previously CCHIT-certified-EHRs will again be prepared for
certification as Complete EHRs. We estimated in the Interim Final Rule
that there were 74 CCHIT-certified-EHRs certified to its 2008
ambulatory certification criteria and 17 CCHIT-certified-EHRs certified
to its 2007 or 2008 inpatient certification criteria.
^{11, 12, 13} Of these 74 and 17 previously CCHIT-certified-
EHRs, we expect that 90% will be prepared and submitted for
certification according to the certification criteria adopted by the
Secretary. We do not believe that it is realistic to assume that 100%
of previously CCHIT-certified-EHRs will be prepared for certification
for a number of reasons. These reasons include: (1) A recognition that
mergers and acquisitions within the marketplace have reduced the number
of previously CCHIT-certified-EHRs; (2) that the subsequent resources
needed to market and promote Certified EHR Technology may not be
available at the present time; and (3) that some previously CCHIT-
certified-EHRs will be tested and certified as EHR Modules rather than
Complete EHRs. Given these assumptions, we have estimated the number of
previously CCHIT-certified-EHRs that will be prepared to be tested and
certified will be 65 and 15, ambulatory and inpatient, respectively. We
also believe it is reasonable to assume that of these 65 and 15, some
will require more preparation than others (i.e., we assume that some
EHRs that were previously CCHIT-certified will include more
capabilities than what they had when CCHIT originally tested and
certified them, and they may consequently be able to more easily meet
the certification criteria adopted by the Secretary). Based on this
assumption, we have created low and high ranges for the costs to
prepare previously CCHIT-certified ambulatory and inpatient EHRs.
---------------------------------------------------------------------------

\11\ Some are marked with a conditional certification either
``Pre-Market: These are conditionally certified EHRs which are new
products that are fully certified once their operational use at a
physician office site has been verified.'' or ``eRx Conditional:
These are conditionally certified pending advanced ePrescribing EHRs
that are in the process of verifying their ability to conduct
medication history, formulary and eligibility checking through a
national network for electronic-prescribing transactions.'' We do
not believe that these caveats have any discernible effect on our
estimates.
\12\ http://www.cchit.org/products/Ambulatory--when
certification years 2006 and 2007 are unchecked. While 78 EHRs are
now listed, we do not believe that changing our estimate would have
a measureable effect on the overall costs.
\13\ http://www.cchit.org/products/Inpatient.
---------------------------------------------------------------------------

In creating our low and high ranges for the tables below, we
assumed based on our analysis of previously developed and required
CCHIT certification criteria that certain capabilities (e.g., the
capability to maintain a medication list) will have been widely
implemented and deployed in HIT so that there will be little or no need
to modify Complete EHRs or EHR Modules for certification. We also
assumed that the certification criteria adopted by the Secretary range
from relatively simple capabilities (e.g., recording a patient's
smoking status) to more sophisticated capabilities (e.g., clinical
decision support). As a result, we have made a general assumption that
the costs to prepare Complete EHRs and EHR Modules to be tested and
certified will vary depending on a number of factors including, but not
limited to, whether the Complete EHR or EHR Module: (1) Already
includes the capability; (2) includes some aspect of the capability
which would need to be updated; (3) does not currently include the
capability at all. We believe it is reasonable to estimate that it will
cost somewhere between $10,000 and $250,000 per certification criterion
to prepare a Complete EHR for testing and certification taking into
account the factors identified directly above. We have used this per
certification criterion range as the basis for our low and high cost
range estimates. For the ease of our calculations, we have rounded to
``40'' the number of certification criteria that the Secretary is
adopting.
For Table 1 we have made the following assumptions based on our
understanding of the capabilities present in previously CCHIT-
certified-EHRs: (1) In general, Complete EHR developers who previously
obtained a CCHIT certification for their EHR technology will possess a
Complete EHR that will meet approximately 75% of the adopted
certification criteria and, as a result, these Complete EHR developers
may need to make more comprehensive adjustments to their Complete EHRs
in order to prepare the Complete EHRs to be tested and certified to the
remaining 25% of the certification criteria adopted by the Secretary;
(2) the average low and high per certification criterion cost for
ambulatory EHRs previously certified by CCHIT which need to be prepared
for testing and certification will be $50,000 and $150,000,
respectively; and (3) the average low and high per certification
criterion cost for previously CCHIT-certified inpatient EHRs to be
prepared for testing and certification will be $75,000 and $200,000,
respectively.

Table 1--Estimated One-Time Costs for Complete EHR Developers To Prepare Previously CCHIT-Certified-EHRs To Be Tested and Certified (3-Year Period)--
Totals Rounded
--------------------------------------------------------------------------------------------------------------------------------------------------------
One time cost per EHR ($M) Total cost for all EHRs over 3-year
Number ------------------------------- period ($M)
Type prepared for ---------------------------------------
certification Low High Mid-point Low High Mid-point
--------------------------------------------------------------------------------------------------------------------------------------------------------
2008 Ambulatory CCHIT-Certified-EHR.............................. 65 $0.50 $1.5 $1.0 $32.5 $97.5 $65.0
2007/2008 Inpatient CCHIT-Certified-EHR.......................... 15 0.75 2.0 1.38 11.25 30.0 20.63
--------------------------------------------------------------------------------------
Total........................................................ 80 ........ ........ ......... 43.75 127.50 85.63
--------------------------------------------------------------------------------------------------------------------------------------------------------

The second type of cost we estimate includes the costs that we
expect for CCHIT-certified ambulatory EHRs certified prior to 2008
(``out-of-date CCHIT-Certified-EHRs'') and never previously CCHIT-
certified-EHRs to be

[[Page 44647]]

prepared to be tested and certified as Complete EHRs rather than as EHR
Modules.\14\ We assume the EHR technology that falls into this category
may require more extensive changes than previously CCHIT-certified-EHRs
identified in Table 1. Again, we have estimated low and high
preparation cost ranges. We assume that there will be very little
growth in the Complete EHR market due to the market share \15\
represented by the previously CCHIT-certified-EHRs included in Table 1
and the upfront costs required to bring a Complete EHR to market. As a
result, we expect there to be 8 and 5 Complete EHRs (for use by
eligible professionals and eligible hospitals, respectively) prepared
to be tested and certified to all of the applicable certification
criteria adopted by the Secretary.\16\
---------------------------------------------------------------------------

\14\ CCHIT began testing and certifying inpatient EHRs in 2007
and we assume that all of those EHRs are included in Table 1 which
is why they are not included in this discussion.
\15\ http://www.cchit.org/about--``* * * EHR products certified
by mid-2009, representing over 75% of the marketplace.''
\16\ This estimate is premised in part on the fact that IHS's
RPMS EHR was not included in Table 1 and that it will be preparing
the RPMS EHR as a Complete EHR to meet the applicable certification
criteria adopted by the Secretary for both ambulatory and inpatient
settings.
---------------------------------------------------------------------------

Again, using our general assumptions discussed above (40
certification criteria and a low and high range of $10,000 to $250,000
per certification criterion) we have made the following additional
assumptions in our Table 2 calculations based on our understanding of
the capabilities currently present in these EHR technologies: (1) In
general, Complete EHR developers who have out-of-date CCHIT-Certified-
EHRs or who never previously had their Complete EHRs certified by CCHIT
will possess Complete EHRs that will meet approximately 40% of the
adopted certification criteria and, as a result, these Complete EHR
developers may need to make more comprehensive adjustments to their
Complete EHRs in order to prepare the Complete EHRs to be tested and
certified to the remaining 60% of the certification criteria adopted by
the Secretary; (2) the average low and high per certification criterion
costs for Complete EHRs for eligible professionals to be prepared to be
tested and certified will be $50,000 and $150,000, respectively; and
(3) the average low and high per certification criterion costs for
Complete EHRs for eligible hospitals to be prepared to be tested and
certified will be $75,000 and $200,000, respectively.

Table 2--Estimated One-Time Costs for Complete EHR Developers To Prepare Never CCHIT-Certified-EHRs and Out-of-Date CCHIT-Certified-EHRs To Be Tested
and Certified (3-Year Period)--Totals Rounded
--------------------------------------------------------------------------------------------------------------------------------------------------------
One time cost per EHR ($M) Total cost for all EHRs over 3-year
Number ------------------------------------ period ($M)
Type prepared for --------------------------------------
certification Low High Mid-point Low High Mid-point
--------------------------------------------------------------------------------------------------------------------------------------------------------
Complete EHRs for Eligible Professionals..................... 8 $1.2 $3.6 $2.4 $9.6 $28.8 $19.2
Complete EHRs for Eligible Hospitals......................... 5 1.8 4.8 3.3 9.0 24.0 16.5
------------------------------------------------------------------------------------------
Total.................................................... 13 .......... .......... .......... 18.60 52.80 35.70
--------------------------------------------------------------------------------------------------------------------------------------------------------

Finally, the third type of cost we estimate relates to the number
of EHR Modules we expect to be prepared to be tested and certified and
the costs associated with that preparation. We clarify as noted in the
Temporary Certification Program final rule that these EHR Modules are
not ``self-developed,'' and we assume that an EHR Module developer
interested in commercially marketing its EHR Module to eligible
professionals and eligible hospitals would develop them. We assumed in
the Interim Final Rule that certain types of EHR Modules (e.g.,
computerized provider order entry; quality reporting; online patient
portals) would be more likely than others to be prepared to be tested
and certified, and we estimated based on our assumption that there
would be 7 EHR Modules prepared to be tested and certified for each of
the 7 types of EHR Modules we identified. This estimate (number of
modules X types of modules) resulted in an approximate number of 50 EHR
Modules that would be prepared to be tested and certified. Again, we
have provided low and high preparation cost estimates in Table 3 below.
We assume that some of EHR Modules prepared for certification will be
capable of meeting applicable certification criteria with little
modification while other EHR Modules will not. Given the potential
differences in preparation costs and combinations of certification
criteria to create EHR Modules, we believe it is reasonable to estimate
a wide range of costs for preparing these types of EHR Modules for
testing and certification. We estimated in the Interim Final Rule and
reiterate below a low average one-time cost of $100,000 to prepare an
EHR Module, based on the assumption that some of the less sophisticated
EHR Modules would only be prepared to be tested and certified to 1 or 2
certification criteria. We estimated in the Interim Final Rule and
reiterate below, a high average cost one-time cost of $500,000 to
prepare an EHR Module, based on the assumption that some of the more
sophisticated EHR Modules would only be prepared to be tested and
certified to 1 or 2 of the more complicated certification criteria or
would be prepared to be tested and certified to multiple certification
criteria.

Table 3--Estimated One-Time Costs to EHR Module Developers To Prepare EHR Modules To Be Tested and Certified (3-Year Period)--Totals Rounded
--------------------------------------------------------------------------------------------------------------------------------------------------------
One-time cost per EHR module ($M) Total cost all EHR modules over 3-
Number ------------------------------------ year period ($M)
Type prepared --------------------------------------
Low High Mid-point Low High Mid-point
--------------------------------------------------------------------------------------------------------------------------------------------------------
EHR Modules.................................................. 50 $0.1 $0.5 $0.3 $5.0 $25.0 $15.0
------------------------------------------------------------------------------------------

[[Page 44648]]

Total.................................................... 50 .......... .......... .......... 5.0 25.0 15.0
--------------------------------------------------------------------------------------------------------------------------------------------------------

In total, if we were to distribute the costs to prepare Complete
EHRs and EHR Modules between 2010 and 2012 evenly per year, we believe
they would likely be in the range of $67.35 to $205.3 million or $22.45
to $68.43 million per year with an annual cost mid-point of
approximately $45.44 million. However, we do not believe that the costs
will be spread evenly over these three years due to market pressures
and the fact that higher upfront incentive payments are available under
the Medicare and Medicaid EHR Incentive Programs. We assume this factor
will motivate a greater ratio of commercial vendors and open source
developers of Complete EHRs and EHR Modules to prepare such technology
for testing and certification in 2010 and 2011 rather than 2012. As a
result, we believe as represented in Table 4 that the costs
attributable to this final rule will be distributed as follows: 45% for
2010, 40% for 2011 and 15% for 2012.

Table 6--Distributed Total Preparation Costs for Complete EHR and EHR Module Developers (3-Year Period)--Totals
Rounded
----------------------------------------------------------------------------------------------------------------
Total average
Year Ratio (percent) Total low cost Total high cost cost estimate
estimate ($M) estimate ($M) ($M)
----------------------------------------------------------------------------------------------------------------
2010................................... 45 $30.31 $92.39 $61.35
2011................................... 40 26.94 82.12 54.53
2012................................... 15 10.10 30.80 20.45
3-Year Totals.......................... ................ 67.35 205.30 136.33
----------------------------------------------------------------------------------------------------------------

Note that these cost estimates do not include additional costs to
prepare for testing and certification that will likely be incurred when
we adopt additional standards, implementation specifications, and
certification criteria to support meaningful use Stages 2 and 3. We
will account for costs associated with these additional standards,
implementation specifications, and certification criteria in future
rulemaking.
b. Benefits
We believe that there will be several benefits arising from this
final rule. By adopting the revisions to this initial set, the
Secretary will set in motion what we believe will be an iterative
process to further enhance the interoperability, functionality,
utility, and security of health information technology and to support
the meaningful use of Certified EHR Technology. The capabilities
specified in the adopted certification criteria will help ensure that
health care providers have the necessary information technology tools
to improve patient care, reduce medical errors and unnecessary tests.
The standards adopted will aid in fostering greater interoperability.
We also believe that this final rule will serve as a catalyst for a
more competitive and innovative marketplace. Finally, adopted
certification criteria can be used by Complete EHR and EHR Module
developers as technical requirements to ensure that their HIT can be
tested and certified and subsequently adopted and implemented as
Certified EHR Technology. Adopting these certification criteria will
also ultimately help enable eligible professionals and eligible
hospitals to qualify for incentive payments under Medicare and Medicaid
EHR Incentive Programs.

D. Regulatory Flexibility Act Analysis

1. Comment and Response
Comment. Some commenters noted that we incorrectly referenced the
proportion of businesses in the marketplace that would qualify as small
businesses under the SBA's size standard. The commenters cited a
presentation by CCHIT which indicated that potentially up to 75% of
Complete EHR developers who design Complete EHRs for ambulatory
settings would qualify as small businesses.
Response. We appreciate commenters pointing out this additional
information. We have revised the discussion accordingly in the final
RFA analysis. However, we do not believe that this additional
information substantially changes our analysis. We do not believe that
any relief can be provided to small businesses under the SBA size
standard that would not undercut our programmatic goals and objectives.
A Complete EHR or EHR Module developer will need to design a Complete
EHR or EHR Module that can be tested and successfully certified to all
applicable certification criteria adopted by the Secretary in order for
the Complete EHR or EHR Module to attain certification. Accordingly, we
see no viable alternatives to reducing the requirements in the final
rule or providing for alternatives to adopted certification criteria.
Additionally, we believe that the regulation builds in a certain amount
of flexibility already in that a small business without the resources
available to develop a Complete EHR has the option to develop an EHR
Module which will presumably require less of an investment (time and
money) to develop.
2. Final RFA Analysis
The RFA requires agencies to analyze options for regulatory relief
of small businesses if a rule has a significant impact on a substantial
number of small entities.
While Complete EHRs and EHR Module developers represent a small
segment of the overall information technology industry, we believe that
the entities impacted by this final rule most likely fall under the
North American Industry Classification System (NAICS) code 541511
``Custom Computer

[[Page 44649]]

Programming Services'' specified at 13 CFR 121.201 where the SBA
publishes ``Small Business Size Standards by NAICS Industry.'' The size
standard associated with this NAICS code is set at $25 million in
annual receipts \17\ which ``indicates the maximum allowed for a
concern and its affiliates to be considered small entities.''
---------------------------------------------------------------------------

\17\ The SBA references that annual receipts means ``total
income'' (or in the case of a sole proprietorship, ``gross income'')
plus ``cost of goods sold'' as these terms are defined and reported
on Internal Revenue Service tax return forms. http://www.sba.gov/idc/groups/public/documents/sba_homepage/guide_to_size_standards.pdf.
---------------------------------------------------------------------------

Based on our analysis, we believe that there is enough data
generally available to establish that between 75% and 90% of entities
that are categorized under the NAICS code 541511 are under the SBA size
standard, but note that the available data does not show how many of
these entities will develop a Complete EHR or EHR Module. We also note
that with the exception of aggregate business information available
through the U.S. Census Bureau and the SBA related to NAICS code
541511, it appears that many Complete EHR and EHR Module developers are
privately held or owned and do not regularly, if at all, make their
specific annual receipts publicly available. As a result, it is
difficult to locate empirical data related to many of the Complete EHR
and EHR Module developers to correlate to the SBA size standard.
We estimate that this final rule could have effects on Complete EHR
and EHR Module developers, some of which may be small entities.
However, we believe that we have established the minimum amount of
requirements necessary to accomplish our policy goals and that no
appropriate regulatory alternatives could be developed to lessen the
compliance burden associated with this final rule. In order for a
Complete EHR or EHR Module to provide the capabilities an eligible
professional or eligible hospital will be required to use under the
Medicare and Medicaid EHR Incentive Programs final rule, it will need
to comply with the applicable certification criteria adopted by the
Secretary. Moreover, we note that this final rule does not impose the
costs cited in the regulatory impact analysis as compliance costs, but
rather as investments which Complete EHR and EHR Module developers
voluntarily take on and expect to recover with an appropriate rate of
return. Accordingly, we do not believe that the final rule will create
a significant impact on a substantial number of small entities. The
Secretary certifies that this final rule will not have a significant
impact on a substantial number of small entities.

E. Executive Order 13132--Federalism

Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has federalism
implications.
Nothing in this final rule imposes substantial direct compliance
costs on State and local governments, preempts State law or otherwise
has federalism implications. We are not aware of any State laws or
regulations that are contradicted or impeded by any of the standards,
implementation specifications, or certification criteria that have been
adopted.
The Office of Management and Budget reviewed this final rule.

List of Subjects in 45 CFR Part 170

Computer technology, Electronic health record, Electronic
information system, Electronic transactions, Health, Health care,
Health information technology, Health insurance, Health records,
Hospitals, Incorporation by reference, Laboratories, Medicaid,
Medicare, Privacy, Reporting and recordkeeping requirements, Public
health, Security.

0
For the reasons set forth in the preamble, 45 CFR subtitle A,
subchapter D, part 170, is amended as follows:

PART 170-HEALTH INFORMATION TECHNOLOGY STANDARDS IMPLEMENTATION
SPECIFICATIONS, AND CERTIFICATION CRITERIA AND CERTIFICATION
PROGRAMS FOR HEALTH INFORMATION TECHNOLOGY

0
1. The authority citation for part 170 continues to read as follows:

Authority: 42 U.S.C. 300jj-11; 42 U.S.C. 300jj-14; 5 U.S.C.
552.

0
2. Amend Sec. 170.102 by revising the definitions of ``Complete EHR,''
``Certified EHR Technology,'' and ``Disclosure'' and adding the
definition of ``Human readable format'' to read as follows:

Sec. 170.102 Definitions.

* * * * *
Certified EHR Technology means:
(1) A Complete EHR that meets the requirements included in the
definition of a Qualified EHR and has been tested and certified in
accordance with the certification program established by the National
Coordinator as having met all applicable certification criteria adopted
by the Secretary; or
(2) A combination of EHR Modules in which each constituent EHR
Module of the combination has been tested and certified in accordance
with the certification program established by the National Coordinator
as having met all applicable certification criteria adopted by the
Secretary, and the resultant combination also meets the requirements
included in the definition of a Qualified EHR.
Complete EHR means EHR technology that has been developed to meet,
at a minimum, all applicable certification criteria adopted by the
Secretary.
Disclosure is defined as it is in 45 CFR 160.103.
* * * * *
Human readable format means a format that enables a human to read
and easily comprehend the information presented to him or her
regardless of the method of presentation.
* * * * *

0
3. Revise subpart B to read as follows:

Subpart B--Standards and Implementation Specifications for Health
Information Technology

Sec.
170.200 Applicability.
170.202 [Reserved]
170.205 Content exchange standards and implementation specifications
for exchanging electronic health information.
170.207 Vocabulary standards for representing electronic health
information.
170.210 Standards for health information technology to protect
electronic health information created, maintained, and exchanged.
170.299 Incorporation by reference.

Sec. 170.200 Applicability.

The standards and implementation specifications adopted in this
part apply with respect to Complete EHRs and EHR Modules.

Sec. 170.202 [Reserved]

Sec. 170.205 Content exchange standards and implementation
specifications for exchanging electronic health information.

The Secretary adopts the following content exchange standards and
associated implementation specifications:
(a) Patient summary record--(1) Standard. Health Level Seven
Clinical Document Architecture (CDA) Release 2, Continuity of Care
Document (CCD) (incorporated by reference in Sec. 170.299).
Implementation specifications. The Healthcare Information Technology
Standards Panel (HITSP) Summary

[[Page 44650]]

Documents Using HL7 CCD Component HITSP/C32 (incorporated by reference
in Sec. 170.299).
(2) Standard. ASTM E2369 Standard Specification for Continuity of
Care Record and Adjunct to ASTM E2369 (incorporated by reference in
Sec. 170.299).
(b) Electronic prescribing. (1) Standard. The National Council for
the Prescription Drug Programs (NCPDP) Prescriber/Pharmacist Interface
SCRIPT standard, Implementation Guide, Version 8, Release 1 (Version
8.1) October 2005 (incorporated by reference in Sec. 170.299)
(2) Standard. NCPDP SCRIPT Standard, Implementation Guide, Version
10.6 (incorporated by reference in Sec. 170.299).
(c) Electronic submission of lab results to public health agencies.
Standard. HL7 2.5.1 (incorporated by reference in Sec. 170.299).
Implementation specifications. HL7 Version 2.5.1 Implementation Guide:
Electronic Laboratory Reporting to Public Health, Release 1 (US Realm)
(incorporated by reference in Sec. 170.299).
(d) Electronic submission to public health agencies for
surveillance or reporting. (1) Standard. HL7 2.3.1 (incorporated by
reference in Sec. 170.299).
(2) Standard. HL7 2.5.1 (incorporated by reference in Sec.
170.299). Implementation specifications. Public Health Information
Network HL7 Version 2.5 Message Structure Specification for National
Condition Reporting Final Version 1.0 and Errata and Clarifications
National Notification Message Structural Specification (incorporated by
reference in Sec. 170.299).
(e) Electronic submission to immunization registries. (1) Standard.
HL7 2.3.1 (incorporated by reference in Sec. 170.299). Implementation
specifications. Implementation Guide for Immunization Data Transactions
using Version 2.3.1 of the Health Level Seven (HL7) Standard Protocol
Implementation Guide Version 2.2 (incorporated by reference in Sec.
170.299).
(2) Standard. HL7 2.5.1 (incorporated by reference in Sec.
170.299). Implementation specifications. HL7 2.5.1 Implementation Guide
for Immunization Messaging Release 1.0 (incorporated by reference in
Sec. 170.299).
(f) Quality reporting. Standard. The CMS Physician Quality
Reporting Initiative (PQRI) 2009 Registry XML Specification
(incorporated by reference in Sec. 170.299). Implementation
specifications. Physician Quality Reporting Initiative Measure
Specifications Manual for Claims and Registry (incorporated by
reference in Sec. 170.299).

Sec. 170.207 Vocabulary standards for representing electronic health
information.

The Secretary adopts the following code sets, terminology, and
nomenclature as the vocabulary standards for the purpose of
representing electronic health information:
(a) Problems--(1) Standard. The code set specified at 45 CFR
162.1002(a)(1) for the indicated conditions.
(2) Standard. International Health Terminology Standards
Development Organization (IHTSDO) Systematized Nomenclature of Medicine
Clinical Terms (SNOMED CT[supreg]) July 2009 version (incorporated by
reference in Sec. 170.299).
(b) Procedures--(1) Standard. The code set specified at 45 CFR
162.1002(a)(2).
(2) Standard. The code set specified at 45 CFR 162.1002(a)(5).
(c) Laboratory test results. Standard. Logical Observation
Identifiers Names and Codes (LOINC[supreg]) version 2.27, when such
codes were received within an electronic transaction from a laboratory
(incorporated by reference in Sec. 170.299).
(d) Medications. Standard. Any source vocabulary that is included
in RxNorm, a standardized nomenclature for clinical drugs produced by
the United States National Library of Medicine.
(e) Immunizations. Standard. HL7 Standard Code Set CVX--Vaccines
Administered, July 30, 2009 version (incorporated by reference in Sec.
170.299).
(f) Race and Ethnicity. Standard. The Office of Management and
Budget Standards for Maintaining, Collecting, and Presenting Federal
Data on Race and Ethnicity, Statistical Policy Directive No. 15,
October 30, 1997 (available at http://www.whitehouse.gov/omb/rewrite/fedreg/ombdir15.html).

Sec. 170.210 Standards for health information technology to protect
electronic health information created, maintained, and exchanged.

The Secretary adopts the following standards to protect electronic
health information created, maintained, and exchanged:
(a) Encryption and decryption of electronic health information--(1)
General. Any encryption algorithm identified by the National Institute
of Standards and Technology (NIST) as an approved security function in
Annex A of the Federal Information Processing Standards (FIPS)
Publication 140-2 (incorporated by reference in Sec. 170.299).
(2) Exchange. Any encrypted and integrity protected link.
(b) Record actions related to electronic health information. The
date, time, patient identification, and user identification must be
recorded when electronic health information is created, modified,
accessed, or deleted; and an indication of which action(s) occurred and
by whom must also be recorded.
(c) Verification that electronic health information has not been
altered in transit. Standard. A hashing algorithm with a security
strength equal to or greater than SHA-1 (Secure Hash Algorithm (SHA-1)
as specified by the National Institute of Standards and Technology
(NIST) in FIPS PUB 180-3 (October, 2008)) must be used to verify that
electronic health information has not been altered.
(d) Record treatment, payment, and health care operations
disclosures. The date, time, patient identification, user
identification, and a description of the disclosure must be recorded
for disclosures for treatment, payment, and health care operations, as
these terms are defined at 45 CFR 164.501.

Sec. 170.299 Incorporation by reference.

(a) Certain material is incorporated by reference into this subpart
with the approval of the Director of the Federal Register under 5
U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that
specified in this section, the Department of Health and Human Services
must publish notice of change in the Federal Register and the material
must be available to the public. All approved material is available for
inspection at the National Archives and Records Administration (NARA).
For information on the availability of this material at NARA, call 202-
741-6030 or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Also, it is available for
inspection at U.S. Department of Health and Human Services, Office of
the National Coordinator for Health Information Technology, Hubert H.
Humphrey Building, Suite 729D, 200 Independence Ave., SW., Washington,
DC 20201, call ahead to arrange for inspection at 202-690-7151, and is
available from the sources listed below.
(b) Health Level Seven, 3300 Washtenaw Avenue, Suite 227, Ann
Arbor, MI 48104; Telephone (734) 677-7777 or http://www.hl7.org/.
(1) Health Level Seven Standard Version 2.3.1 (HL7 2.3.1), An
Application Protocol for Electronic Data Exchange in Healthcare
Environments, April 14, 1999, IBR approved for Sec. 170.205.
(2) Health Level Seven Messaging Standard Version 2.5.1 (HL7
2.5.1), An Application Protocol for Electronic Data Exchange in
Healthcare Environments,

[[Page 44651]]

February 21, 2007, IBR approved for Sec. 170.205.
(3) Health Level Seven Implementation Guide: Clinical Document
Architecture (CDA) Release 2--Continuity of Care Document (CCD), April
01, 2007, IBR approved for Sec. 170.205.
(4) HL7 Version 2.5.1 Implementation Guide: Electronic Laboratory
Reporting to Public Health, Release 1 (US Realm) HL7 Version 2.5.1:
ORU>
http://www.astm.org/.
(1) ASTM E2369-05: Standard Specification for Continuity of Care
Record (CCR), year of adoption 2005, ASTM approved July 17, 2006, IBR
approved for Sec. 170.205.
(2) ASTM E2369-05 (Adjunct to E2369): Standard Specification
Continuity of Care Record,--Final Version 1.0 (V1.0), November 7, 2005,
IBR approved for Sec. 170.205.
(d) National Council for Prescription Drug Programs, Incorporated,
9240 E. Raintree Drive, Scottsdale, AZ 85260- 7518; Telephone (480)
477-1000; and Facsimile (480) 767-1042 or http://www.ncpdp.org.
(1) National Council for Prescription Drug Programs Prescriber/
Pharmacist Interface SCRIPT Standard, Implementation Guide, Version 8,
Release 1, October 2005, IBR approved for Sec. 170.205.
(2) SCRIPT Standard, Implementation Guide, Version 10.6, October,
2008, (Approval date for ANSI: November 12, 2008), IBR approved for
Sec. 170.205.
(3) [Reserved]
(e) Regenstrief Institute, Inc., LOINC[supreg] c/o Medical
Informatics The Regenstrief Institute, Inc 410 West 10th Street, Suite
2000 Indianapolis, IN 46202-3012; Telephone (317) 423-5558 or http://loinc.org/.
(1) Logical Observation Identifiers Names and Codes
(LOINC^[supreg]) version 2.27, June 15, 2009, IBR approved
for Sec. 170.207.
(2) [Reserved]
(f) U.S. National Library of Medicine, 8600 Rockville Pike,
Bethesda, MD 20894; Telephone (301) 594-5983 or http://www.nlm.nih.gov/
.
(1) International Health Terminology Standards Development
Organization Systematized Nomenclature of Medicine Clinical Terms
(SNOMED CT[supreg]), International Release, July 2009, IBR approved for
Sec. 170.207.
(2) [Reserved]
(g) Centers for Disease Control and Prevention, National Centers
for Immunization and Respiratory Diseases Immunization Information
System Support Branch--Informatics 1600 Clifton Road Mailstop: E-62
Atlanta, GA 30333
(1) HL7 Standard Code Set CVX--Vaccines Administered, July 30,
2009, IBR approved for Sec. 170.207.
(2) Implementation Guide for Immunization Data Transactions using
Version 2.3.1 of the Health Level Seven (HL7) Standard Protocol
Implementation Guide Version 2.2, June 2006, IBR approved for Sec.
170.205.
(3) HL7 2.5.1 Implementation Guide for Immunization Messaging
Release 1.0, May 1, 2010, IBR approved for Sec. 170.205.
(4) Public Health Information Network HL7 Version 2.5 Message
Structure Specification for National Condition Reporting Final Version
1.0, including Errata and Clarifications, National Notification Message
Structural Specification, 8/18/2007, August 18, 2007, IBR approved for
Sec. 170.205.
(5) [Reserved]
(h) Centers for Medicare & Medicaid Services, Office of Clinical
Standards and Quality, 7500 Security Boulevard, Baltimore, Maryland
21244; Telephone (410) 786-3000
(1) CMS PQRI 2009 Registry XML Specifications, IBR approved for
Sec. 170.205.
(2) 2009 Physician Quality Reporting Initiative Measure
Specifications Manual for Claims and Registry, Version 3.0, December 8,
2008 IBR approved for Sec. 170.205.
(i) National Institute of Standards and Technology, Information
Technology Laboratory, National Institute of Standards and Technology,
100 Bureau Drive, Gaithersburg, MD 20899-8930, http://csrc.nist.gov/groups/STM/cmvp/standards.html.
(1) Annex A: Approved Security Functions for FIPS PUB 140-2,
Security Requirements for Cryptographic Modules, Draft, January 27,
2010, IBR approved for Sec. 170.210.
(2) [Reserved]
(j) American National Standards Institute, Health Information
Technology Standards Panel (HITSP) Secretariat, 25 West 43rd Street--
Fourth Floor, New York, NY 10036, http://www.hitsp.org
(1) HITSP Summary Documents Using HL7 Continuity of Care Document
(CCD) Component, HITSP/C32, July 8, 2009, Version 2.5, IBR approved for
Sec. 170.205.

0
4. Revise subpart C to read as follows:

Subpart C--Certification Criteria for Health Information Technology

Sec.
170.300 Applicability.
170.302 General certification criteria for Complete EHRs or EHR
Modules.
170.304 Specific certification criteria for Complete EHRs or EHR
Modules designed for an ambulatory setting.
170.306 Specific certification criteria for Complete EHRs or EHR
Modules designed for an inpatient setting.

Sec. 170.300 Applicability.

(a) The certification criteria adopted in this subpart apply to the
testing and certification of Complete EHRs and EHR Modules.
(b) When a certification criterion refers to two or more standards
as alternatives, use of at least one of the alternative standards will
be considered compliant.
(c) Complete EHRs and EHR Modules are not required to be compliant
with certification criteria that are designated as optional.

Sec. 170.302 General certification criteria for Complete EHRs or EHR
Modules.

The Secretary adopts the following general certification criteria
for Complete EHRs or EHR Modules. Complete EHRs or EHR Modules must
include the capability to perform the following functions
electronically, unless designated as optional, and in accordance with
all applicable standards and implementation specifications adopted in
this part:
(a) Drug-drug, drug-allergy interaction checks--(1) Notifications.
Automatically and electronically generate and indicate in real-time,
notifications at the point of care for drug-drug and drug-allergy
contraindications based on medication list, medication allergy list,
and computerized provider order entry (CPOE).
(2) Adjustments. Provide certain users with the ability to adjust
notifications provided for drug-drug and drug-allergy interaction
checks.
(b) Drug-formulary checks. Enable a user to electronically check if
drugs are in a formulary or preferred drug list.
(c) Maintain up-to-date problem list. Enable a user to
electronically record, modify, and retrieve a patient's problem list
for longitudinal care in accordance with:
(1) The standard specified in Sec. 170.207(a)(1); or
(2) At a minimum, the version of the standard specified in Sec.
170.207(a)(2).
(d) Maintain active medication list. Enable a user to
electronically record, modify, and retrieve a patient's active
medication list as well as medication history for longitudinal care.

[[Page 44652]]

(e) Maintain active medication allergy list. Enable a user to
electronically record, modify, and retrieve a patient's active
medication allergy list as well as medication allergy history for
longitudinal care.
(f) Record and chart vital signs--(1) Vital signs. Enable a user to
electronically record, modify, and retrieve a patient's vital signs
including, at a minimum, height, weight, and blood pressure.
(2) Calculate body mass index. Automatically calculate and display
body mass index (BMI) based on a patient's height and weight.
(3) Plot and display growth charts. Plot and electronically
display, upon request, growth charts for patients 2-20 years old.
(g) Smoking status. Enable a user to electronically record, modify,
and retrieve the smoking status of a patient. Smoking status types must
include: current every day smoker; current some day smoker; former
smoker; never smoker; smoker, current status unknown; and unknown if
ever smoked.
(h) Incorporate laboratory test results--(1) Receive results.
Electronically receive clinical laboratory test results in a structured
format and display such results in human readable format.
(2) Display test report information. Electronically display all the
information for a test report specified at 42 CFR 493.1291(c)(1)
through (7).
(3) Incorporate results. Electronically attribute, associate, or
link a laboratory test result to a laboratory order or patient record.
(i) Generate patient lists. Enable a user to electronically select,
sort, retrieve, and generate lists of patients according to, at a
minimum, the data elements included in:
(1) Problem list;
(2) Medication list;
(3) Demographics; and
(4) Laboratory test results.
(j) Medication reconciliation. Enable a user to electronically
compare two or more medication lists.
(k) Submission to immunization registries. Electronically record,
modify, retrieve, and submit immunization information in accordance
with:
(1) The standard (and applicable implementation specifications)
specified in Sec. 170.205(e)(1) or Sec. 170.205(e)(2); and
(2) At a minimum, the version of the standard specified in Sec.
170.207(e).
(l) Public health surveillance. Electronically record, modify,
retrieve, and submit syndrome-based public health surveillance
information in accordance with the standard (and applicable
implementation specifications) specified in Sec. 170.205(d)(1) or
Sec. 170.205(d)(2).
(m) Patient-specific education resources. Enable a user to
electronically identify and provide patient-specific education
resources according to, at a minimum, the data elements included in the
patient's: problem list; medication list; and laboratory test results;
as well as provide such resources to the patient.
(n) Automated measure calculation. For each meaningful use
objective with a percentage-based measure, electronically record the
numerator and denominator and generate a report including the
numerator, denominator, and resulting percentage associated with each
applicable meaningful use measure.
(o) Access control. Assign a unique name and/or number for
identifying and tracking user identity and establish controls that
permit only authorized users to access electronic health information.
(p) Emergency access. Permit authorized users (who are authorized
for emergency situations) to access electronic health information
during an emergency.
(q) Automatic log-off. Terminate an electronic session after a
predetermined time of inactivity.
(r) Audit log. (1)--Record actions. Record actions related to
electronic health information in accordance with the standard specified
in Sec. 170.210(b).
(2) Generate audit log. Enable a user to generate an audit log for
a specific time period and to sort entries in the audit log according
to any of the elements specified in the standard at Sec. 170.210(b).
(s) Integrity. (1) Create a message digest in accordance with the
standard specified in Sec. 170.210(c).
(2) Verify in accordance with the standard specified in Sec.
170.210(c) upon receipt of electronically exchanged health information
that such information has not been altered.
(3) Detection. Detect the alteration of audit logs.
(t) Authentication. Verify that a person or entity seeking access
to electronic health information is the one claimed and is authorized
to access such information.
(u) General encryption. Encrypt and decrypt electronic health
information in accordance with the standard specified in Sec.
170.210(a)(1), unless the Secretary determines that the use of such
algorithm would pose a significant security risk for Certified EHR
Technology.
(v) Encryption when exchanging electronic health information.
Encrypt and decrypt electronic health information when exchanged in
accordance with the standard specified in Sec. 170.210(a)(2).
(w) Optional. Accounting of disclosures. Record disclosures made
for treatment, payment, and health care operations in accordance with
the standard specified in Sec. 170.210(d).

Sec. 170.304 Specific certification criteria for Complete EHRs or EHR
Modules designed for an ambulatory setting.

The Secretary adopts the following certification criteria for
Complete EHRs or EHR Modules designed to be used in an ambulatory
setting. Complete EHRs or EHR Modules must include the capability to
perform the following functions electronically and in accordance with
all applicable standards and implementation specifications adopted in
this part:
(a) Computerized provider order entry. Enable a user to
electronically record, store, retrieve, and modify, at a minimum, the
following order types:
(1) Medications;
(2) Laboratory; and
(3) Radiology/imaging.
(b) Electronic prescribing. Enable a user to electronically
generate and transmit prescriptions and prescription-related
information in accordance with:
(1) The standard specified in Sec. 170.205(b)(1) or Sec.
170.205(b)(2); and
(2) The standard specified in Sec. 170.207(d).
(c) Record demographics. Enable a user to electronically record,
modify, and retrieve patient demographic data including preferred
language, gender, race, ethnicity, and date of birth. Enable race and
ethnicity to be recorded in accordance with the standard specified at
Sec. 170.207(f).
(d) Patient reminders. Enable a user to electronically generate a
patient reminder list for preventive or follow-up care according to
patient preferences based on, at a minimum, the data elements included
in:
(1) Problem list;
(2) Medication list;
(3) Medication allergy list;
(4) Demographics; and
(5) Laboratory test results.
(e) Clinical decision support--(1) Implement rules. Implement
automated, electronic clinical decision support rules (in addition to
drug-drug and drug-allergy contraindication checking) based on the data
elements included in: problem list; medication list; demographics; and
laboratory test results.
(2) Notifications. Automatically and electronically generate and
indicate in

[[Page 44653]]

real-time, notifications and care suggestions based upon clinical
decision support rules.
(f) Electronic copy of health information. Enable a user to create
an electronic copy of a patient's clinical information, including, at a
minimum, diagnostic test results, problem list, medication list, and
medication allergy list in:
(1) Human readable format; and
(2) On electronic media or through some other electronic means in
accordance with:
(i) The standard (and applicable implementation specifications)
specified in Sec. 170.205(a)(1) or Sec. 170.205(a)(2); and
(ii) For the following data elements the applicable standard must
be used:
(A) Problems. The standard specified in Sec. 170.207(a)(1) or, at
a minimum, the version of the standard specified in Sec.
170.207(a)(2);
(B) Laboratory test results. At a minimum, the version of the
standard specified in Sec. 170.207(c); and
(C) Medications. The standard specified in Sec. 170.207(d).
(g) Timely access. Enable a user to provide patients with online
access to their clinical information, including, at a minimum, lab test
results, problem list, medication list, and medication allergy list.
(h) Clinical summaries. Enable a user to provide clinical summaries
to patients for each office visit that include, at a minimum,
diagnostic test results, problem list, medication list, and medication
allergy list. If the clinical summary is provided electronically it
must be:
(1) Provided in human readable format; and
(2) Provided on electronic media or through some other electronic
means in accordance with:
(i) The standard (and applicable implementation specifications)
specified in Sec. 170.205(a)(1) or Sec. 170.205(a)(2); and
(ii) For the following data elements the applicable standard must
be used:
(A) Problems. The standard specified in Sec. 170.207(a)(1) or, at
a minimum, the version of the standard specified in Sec.
170.207(a)(2);
(B) Laboratory test results. At a minimum, the version of the
standard specified in Sec. 170.207(c); and
(C) Medications. The standard specified in Sec. 170.207(d).
(i) Exchange clinical information and patient summary record--(1)
Electronically receive and display. Electronically receive and display
a patient's summary record, from other providers and organizations
including, at a minimum, diagnostic tests results, problem list,
medication list, and medication allergy list in accordance with the
standard (and applicable implementation specifications) specified in
Sec. 170.205(a)(1) or Sec. 170.205(a)(2). Upon receipt of a patient
summary record formatted according to the alternative standard, display
it in human readable format.
(2) Electronically transmit. Enable a user to electronically
transmit a patient summary record to other providers and organizations
including, at a minimum, diagnostic test results, problem list,
medication list, and medication allergy list in accordance with:
(i) The standard (and applicable implementation specifications)
specified in Sec. 170.205(a)(1) or Sec. 170.205(a)(2); and
(ii) For the following data elements the applicable standard must
be used:
(A) Problems. The standard specified in Sec. 170.207(a)(1) or, at
a minimum, the version of the standard specified in Sec.
170.207(a)(2);
(B) Laboratory test results. At a minimum, the version of the
standard specified in Sec. 170.207(c); and
(C) Medications. The standard specified in Sec. 170.207(d).
(j) Calculate and submit clinical quality measures--(1) Calculate
(i) Electronically calculate all of the core clinical measures
specified by CMS for eligible professionals.
(ii) Electronically calculate, at a minimum, three clinical quality
measures specified by CMS for eligible professionals, in addition to
those clinical quality measures specified in paragraph (1)(i).
(2) Submission. Enable a user to electronically submit calculated
clinical quality measures in accordance with the standard and
implementation specifications specified in Sec. 170.205(f).

Sec. 170.306 Specific certification criteria for Complete EHRs or EHR
Modules designed for an inpatient setting.

The Secretary adopts the following certification criteria for
Complete EHRs or EHR Modules designed to be used in an inpatient
setting. Complete EHRs or EHR Modules must include the capability to
perform the following functions electronically and in accordance with
all applicable standards and implementation specifications adopted in
this part:
(a) Computerized provider order entry. Enable a user to
electronically record, store, retrieve, and modify, at a minimum, the
following order types:
(1) Medications;
(2) Laboratory; and
(3) Radiology/imaging.
(b) Record demographics. Enable a user to electronically record,
modify, and retrieve patient demographic data including preferred
language, gender, race, ethnicity, date of birth, and date and
preliminary cause of death in the event of mortality. Enable race and
ethnicity to be recorded in accordance with the standard specified at
Sec. 170.207(f).
(c) Clinical decision support--(1) Implement rules. Implement
automated, electronic clinical decision support rules (in addition to
drug-drug and drug-allergy contraindication checking) based on the data
elements included in: problem list; medication list; demographics; and
laboratory test results.
(2) Notifications. Automatically and electronically generate and
indicate in real-time, notifications and care suggestions based upon
clinical decision support rules.
(d) Electronic copy of health information. (1) Enable a user to
create an electronic copy of a patient's clinical information,
including, at a minimum, diagnostic test results, problem list,
medication list, medication allergy list, and procedures:
(i) In human readable format; and
(ii) On electronic media or through some other electronic means in
accordance with:
(A) The standard (and applicable implementation specifications)
specified in Sec. 170.205(a)(1) or Sec. 170.205(a)(2); and
(B) For the following data elements the applicable standard must be
used:
(1) Problems. The standard specified in Sec. 170.207(a)(1) or, at
a minimum, the version of the standard specified in Sec.
170.207(a)(2);
(2) Procedures. The standard specified in Sec. 170.207(b)(1) or
Sec. 170.207(b)(2);
(3) Laboratory test results. At a minimum, the version of the
standard specified in Sec. 170.207(c); and
(4) Medications. The standard specified in Sec. 170.207(d).
(2) Enable a user to create an electronic copy of a patient's
discharge summary in human readable format and on electronic media or
through some other electronic means.
(e) Electronic copy of discharge instructions. Enable a user to
create an electronic copy of the discharge instructions for a patient,
in human readable format, at the time of discharge on electronic media
or through some other electronic means.
(f) Exchange clinical information and patient summary record--(1)
Electronically receive and display. Electronically receive and display
a patient's summary record from other

[[Page 44654]]

providers and organizations including, at a minimum, diagnostic test
results, problem list, medication list, medication allergy list, and
procedures in accordance with the standard (and applicable
implementation specifications) specified in Sec. 170.205(a)(1) or
Sec. 170.205(a)(2). Upon receipt of a patient summary record formatted
according to the alternative standard, display it in human readable
format.
(2) Electronically transmit. Enable a user to electronically
transmit a patient's summary record to other providers and
organizations including, at a minimum, diagnostic results, problem
list, medication list, medication allergy list, and procedures in
accordance with:
(i) The standard (and applicable implementation specifications)
specified in Sec. 170.205(a)(1) or Sec. 170.205(a)(2); and
(ii) For the following data elements the applicable standard must
be used:
(A) Problems. The standard specified in Sec. 170.207(a)(1) or, at
a minimum, the version of the standard specified in Sec.
170.207(a)(2);
(B) Procedures. The standard specified in Sec. 170.207(b)(1) or
Sec. 170.207(b)(2);
(C) Laboratory test results. At a minimum, the version of the
standard specified in Sec. 170.207(c); and
(D) Medications. The standard specified in Sec. 170.207(d).
(g) Reportable lab results. Electronically record, modify,
retrieve, and submit reportable clinical lab results in accordance with
the standard (and applicable implementation specifications) specified
in Sec. 170.205(c) and, at a minimum, the version of the standard
specified in Sec. 170.207(c).
(h) Advance directives. Enable a user to electronically record
whether a patient has an advance directive.
(i) Calculate and submit clinical quality measures--(1) Calculate.
Electronically calculate all of the clinical quality measures specified
by CMS for eligible hospitals and critical access hospitals.
(2) Submission. Enable a user to electronically submit calculated
clinical quality measures in accordance with the standard and
implementation specifications specified in Sec. 170.205(f).

Dated: July 9, 2010.
Kathleen Sebelius,
Secretary.
[FR Doc. 2010-17210 Filed 7-12-10; 8:45 am]
BILLING CODE 4150-45-P