907 KAR 6:005. Electronic health record incentive payments.
RELATES TO: KRS 205.520(3), 42 C.F.R. 170.102,
495.4, 495.6, 495.8, 495.100, 400.203, 495.304, 405.306, 405.308, 495.312,
495.314, 495.368, 495.370, 42 U.S.C. 1396(a)(3)(F), (t),
STATUTORY AUTHORITY: KRS 194A.010(1),
194A.030(2), 194A.050(1), 205.520(3), 42 U.S.C. 1396b(a)(3)(F), 1396b(t)
NECESSITY, FUNCTION, AND CONFORMITY: The
Cabinet for Health and Family Services, Department for Medicaid Services has
responsibility to administer the Medicaid Program. KRS 205.520(3) authorizes
the cabinet, by administrative regulation, to comply with a requirement that
may be imposed, or opportunity presented by federal law for the provision of
medical assistance to Kentucky's indigent citizenry. 42 U.S.C. 1396(a)(3)(F)
authorizes states to establish a Medicaid electronic health record (EHR)
incentive payment program to provide payments to Medicaid providers who acquire
and implement electronic health records. This administrative regulation
establishes Medicaid electronic health record incentive payment requirements
and policies.
Section 1. Definitions. (1) "Department"
means the Department for Medicaid Services or its designee.
(2) "EHR" means electronic
health record.
(3) "Eligible hospital" is
defined in 42 C.F.R. 495.100.
(4) "Eligible professional" is
defined in 42 C.F.R. 495.100.
(5) "Federal financial participation"
is defined in 42 C.F.R. 400.203.
(6) "Meaningful EHR user" is
defined in 42 C.F.R. 495.4.
(7) "Program year" means:
(a) A calendar year for eligible
professionals; or
(b) A federal fiscal year for eligible
hospitals.
(8) "Provider" is defined by
KRS 205.8451(7).
(9) "Qualified electronic health
record" or "qualified EHR" is defined in 45 C.F.R. 170.102.
(10) "Qualifying critical access
hospital" or "qualifying CAH" is defined in 42 C.F.R. 495.100.
(11) "Qualifying eligible
professional" is defined by 42 C.F.R. 495.100.
(12) "Qualifying hospital" is
defined by 42 C.F.R. 495.100.
Section 2. General Requirements of EHR
Incentive Payment Eligibility. To be eligible for an EHR incentive payment:
(1) An individual shall be an eligible
professional who:
(a) Has an office of practice that is physically
located in the Commonwealth of Kentucky;
(b) Is currently enrolled in the Kentucky
Medicaid Program pursuant to 907 KAR 1:672;
(c) Is currently participating in the
Kentucky Medicaid Program pursuant to 907 KAR 1:671;
(d) Is not on the:
1. United States Department of Health and
Human Services, Office of Inspector General’s List of Excluded Individuals and
Entities, which is available at http://oig.hhs.gov/fraud/exclusions/exclusions-list.asp;
or
2. Department’s DMS List of Excluded
Providers, which is available at http://chfs.ky.gov/dms/provEnr; and
(e) Has not already received an
electronic health record incentive payment from:
1. Another state within the current
program year; or
2. Kentucky within the current program
year; or
(2) An entity shall be an eligible
hospital that:
(a) Is physically located in the Commonwealth
of Kentucky;
(b) Is currently enrolled in the Kentucky
Medicaid Program pursuant to 907 KAR 1:672;
(c) Is currently participating in the Kentucky
Medicaid Program pursuant to 907 KAR 1:671;
(d) Is not on the:
1. United States Department of Health and
Human Services, Office of Inspector General’s List of Excluded Individuals and
Entities, which is available at http://oig.hhs.gov/fraud/exclusions/exclusions-list.asp;
or
2. Department’s DMS List of Excluded
Providers, which is available at http://chfs.ky.gov/dms/provEnr; and
(e) Has not already received an
electronic health record incentive payment from:
1. Another state within the current
program year; or
2. Kentucky within the current program
year.
Section 3. EHR Incentive Payment Provider
Scope and Eligibility. To qualify for an EHR incentive payment:
(1) An eligible professional shall meet
the:
(a) Requirements established in 42 C.F.R.
495.304(c) unless exempt pursuant to 42 C.F.R. 495.304(d); and
(b) Requirements established in Section
2(1) of this administrative regulation; or
(2) An eligible hospital shall meet the:
(a) Requirement established in 42 C.F.R.
495.304(e); and
(b) Requirements established in Section
2(2) of this administrative regulation.
Section 4. Establishing Patient Volume. (1)
An eligible:
(a) Professional shall establish his or
her patient volume in accordance with 42 C.F.R. 495.304 and 495.306(c)(1); or
(b) Hospital shall establish its patient
volume in accordance with 42 C.F.R. 495.304 and 405.306(c)(2).
(2)(a) The establishment of the patient
volume of an eligible professional who practices predominantly in a
federally-qualified health center (FQHC) or a rural health clinic (RHC) shall comply
with 42 C.F.R. 495.304(c)(3) and 495.306(c)(3).
(b) An eligible professional shall be
determined to practice predominantly in an FQHC or RHC if over fifty (50)
percent of his or her total patient encounters over a six (6) month period in
the most recent calendar year occurred in an FQHC or an RHC.
Section 5. Basis for Determining an EHR
Incentive Payment. The department’s basis for determining an incentive payment
shall be in accordance with 42 C.F.R. 495.308.
Section 6. EHR Incentive Payment Amounts
and Limits. (1) EHR incentive payments to an eligible professional shall be limited
pursuant to 42 C.F.R. 495.310(a) through (e).
(2) EHR incentive payments to an eligible
hospital shall be limited pursuant to 42 C.F.R. 495.310(e) and (f).
(3)(a) An aggregate EHR hospital
incentive payment amount shall be in accordance with 42 C.F.R. 495.310(g).
(b) If the department determines that an
eligible hospital’s data on charity care necessary to calculate the aggregate
EHR hospital incentive payment referenced in paragraph (a) of this subsection
is unavailable, the department shall determine an approximate proxy for charity
care in accordance with 42 C.F.R. 495.310(h).
(c) If data, other than data referenced
in paragraph (b) of this subsection, does not exist, the department shall deem
in accordance with 42 C.F.R. 495.310(i).
(4) An eligible hospital may receive EHR
incentive payments from Medicare and Medicaid in accordance with 42 C.F.R.
495.310(j).
(5) EHR incentive payments to
state-designated entities shall be in accordance with 42 C.F.R. 495.310(k).
Section 7. Payment Process. (1) To receive
an EHR incentive payment, a provider shall, in addition to satisfying the EHR
incentive payment eligibility requirements established in this administrative
regulation, comply with 42 C.F.R. 495.312(b).
(2) The department’s EHR incentive
payment process shall comply with 42 C.F.R. 495.312(a) and (c).
(3) An EHR incentive payment to an
eligible professional or eligible hospital shall be disbursed based on the
criteria established in 42 C.F.R. 495.2 through 495.10.
(4) An EHR incentive payment to an
eligible:
(a) Professional shall be disbursed in
accordance with the timeframe established in 42 C.F.R. 495.312(e)(1); or
(b) Hospital shall be disbursed in
accordance with the timeframe established in 42 C.F.R. 495.312(e)(2).
Section 8. Activities Required to Receive
an Incentive Payment. (1) To receive an EHR incentive payment in the first payment
year, an eligible professional or eligible hospital shall comply with the requirements
established in 42 C.F.R. 495.314(a).
(2) To receive an EHR incentive payment
in the second, third, fourth, fifth, or sixth payment year, an eligible professional
or eligible hospital shall meet the requirements established in 42 C.F.R.
495.314(b).
Section 9. Meaningful Use Objectives and
Measures. (1) An eligible professional shall meet the meaningful use criteria
established in 42 C.F.R. 495.6(a), (c), and (d).
(2) An eligible hospital shall meet the
meaningful use requirements established in 42 C.F.R. 495.6(b), (c), and (e).
Section 10. Demonstration of Meaningful
Use. (1) An eligible professional shall demonstrate, in accordance with 42 C.F.R.
495.8(a), that he or she meets the meaningful use criteria established in 42 C.F.R.
495.6(a), (c), and (d).
(2) An eligible hospital shall
demonstrate, in accordance with 42 C.F.R. 495.8(b), that it meets the
meaningful use requirements established in 42 C.F.R. 495.6(b), (c), and (e).
(3) An eligible professional’s or
eligible hospital’s demonstration of meaningful use shall be subject to review
by:
(a) The department; or
(b) The Centers for Medicare and Medicaid
Services.
Section 11. Meaningful Use Documentation.
An eligible professional, eligible hospital or critical access hospital shall
maintain documentation supporting their demonstration of meaningful use in
accordance with 42 C.F.R. 495.8(c)(2).
Section 12. Combating Fraud and Abuse.
(1) On any form on which a provider submits information to the department that
is necessary to determine the provider’s eligibility to receive EHR payments, the
provider shall include a statement that meets the requirements established in
42 C.F.R. 495.368(b).
(2) If an overpayment is due from an
eligible professional or eligible hospital to the department, the eligible
professional or eligible hospital shall repay the entire overpayment within the
timeframe established in 42 C.F.R. 495.368(c).
Section 13. Overpayment Dispute
Resolution Process Prior to Administrative Hearing. (1)(a) An eligible
professional or eligible hospital may appeal the following by first requesting
a dispute resolution meeting:
1. An incentive payment;
2. An incentive payment amount;
3. A determination regarding the demonstration
of adopting, implementing, or upgrading meaningful use of electronic health
record technology; or
4. An overpayment amount determined by
the department to be due from the eligible professional or eligible hospital.
(b) A provider may appeal a determination
regarding the provider’s eligibility for electronic health record incentive payments
by first requesting a dispute resolution meeting.
(2) A request for a dispute resolution
meeting shall:
(a) Be in writing and mailed to and
received by the department within thirty (30) calendar days of the date the
notice was received by the provider;
(b) Clearly identify each specific issue
and dispute; and
(c) Clearly state the:
1. Basis on which the department’s
decision on each issue is believed to be erroneous; and
2. Name, mailing address, and telephone
number of individuals who are expected to attend the dispute resolution meeting
on the provider's behalf.
(3) The department shall not accept or
honor a request for an administrative appeals process that is filed prior to
receipt of the department’s written determination that creates an
administrative appeal right.
(4)(a) The department or the party
requesting a dispute resolution meeting may request the presence of a court
reporter at the dispute resolution meeting.
(b) If requested, a court reporter shall
be secured in advance of a dispute resolution meeting, and a dispute resolution
meeting shall not be postponed solely due to the failure to timely secure a
court reporter.
(5)(a) Except if a court reporter was
requested solely by a provider, the department shall bear the cost of a court
reporter.
(b) Each party shall at all times bear
the costs of requested transcribed copies.
(6) A dispute resolution meeting
involving a court reporter shall:
(a) Be conducted face to face; and
(b) Not be conducted via telephone.
(7) If an administrative hearing is
requested at the dispute resolution meeting, the dispute resolution meeting transcript
shall become part of the official record of the hearing pursuant to KRS
13B.130.
(8)(a) The department shall, within ten
(10) calendar days of receipt of the request for a dispute resolution meeting,
send a written response to the eligible professional or hospital:
1. Identifying the time and place in
which the meeting shall be held; and
2. Identifying the department's
representative who is expected to attend the meeting.
(b) A dispute resolution meeting shall be
held:
1. No sooner than ten (10) calendar days
and no later than twenty (20) calendar days of receipt of the request for a
dispute resolution meeting;
2. Sooner than ten (10) calendar days of
receipt of the request for a dispute resolution meeting if both parties agree
to the sooner date; or
3. At a date later than the date
established in subparagraph 1. of this paragraph if a postponement is requested.
(c) A dispute resolution meeting may be
postponed for a maximum additional period of sixty (60) calendar days, at the request
of either party.
(9)(a) A dispute resolution meeting shall
be conducted in an informal manner as directed by the department's representative.
(b) An eligible professional or hospital
may present evidence or testimony at a dispute resolution meeting to support the
case.
(c) Each party at a dispute resolution
meeting shall be given an opportunity to ask questions to clarify the disputed
issue or issues.
(10)(a) An eligible professional,
eligible hospital, or provider may, within the same deadline specified in
subsection (2) of this section, submit information they wish to be considered
in relation to the department's determination without requesting a dispute
resolution meeting.
(b) A submission of additional
documentation shall not extend the thirty (30) day time period for requesting a
resolution meeting.
(11) Within thirty (30) calendar days
after the dispute resolution meeting or the date the information to be considered
was presented to the department as established in subsection (10) of this
section, the department shall:
(a) Uphold, rescind, or modify the
original decision with regard to the disputed issue; and
(b) Provide written notice to the eligible
professional or hospital or the provider of:
1. The department's decision; and
2. The facts upon which the decision was
based with reference to applicable statutes or administrative regulations.
(12) Information submitted for the
purpose of informally resolving a provider dispute shall not be considered a
request for an administrative hearing.
(13) The department may waive a dispute
resolution meeting, at its sole discretion, and issue a decision in lieu of the
meeting, with the decision subject to administrative hearing policies
established in 907 KAR 1:671.
(14)(a) The department may postpone issuing
its findings of a dispute resolution meeting, or its review of the materials
submitted in lieu of a dispute resolution meeting, by mailing a written notice
to the eligible professional, eligible hospital, or provider stating the:
1. Reason for the delay; and
2. Anticipated completion date of the
review.
(b) A postponement referenced in
paragraph (a) of this subsection shall not extend beyond 180 days.
Section 14. Administrative Hearing. (1)
An administrative hearing shall be conducted in accordance with KRS Chapter 13B
by a hearing officer who is knowledgeable of Medicaid policy, as established in
federal and state laws.
(2) The secretary of the cabinet,
pursuant to KRS 13B.030(1), shall delegate by administrative order conferred
powers to conduct administrative hearings under 907 KAR 1:671.
(3) The department shall not accept or
honor a request for an administrative appeals process by an eligible
professional or hospital that is:
(a) Filed at the state level for a federal-mandated
exclusion subsequent to a federal notice of the exclusion containing the
federal appeal rights; or
(b) Filed at the state level for program
exclusion resulting from a criminal conviction by the court of competent
jurisdiction, upon exhaustion or failure to timely pursue the judicial appeal
process.
(4) The administrative hearing process
shall be used to appeal:
(a) An incentive payment;
(b) An incentive payment amount;
(c) A determination regarding a
provider’s demonstration of adopting, implementing, or upgrading meaningful use
of electronic health record technology;
(d) An overpayment amount determined by
the department to be due from the eligible provider;
(e) A determination regarding a
provider’s eligibility for electronic health record incentive payments by first
requesting a dispute resolution meeting;
(f) A department’s requirement of a
provider to repay an electronic health record incentive payment overpayment; or
(g) A department’s withholding of a
provider’s payments in accordance with 907 KAR 1:671.
(5)(a) For a written request for an
administrative hearing to be timely, the written request for an administrative
hearing shall be received by the department within thirty (30) calendar days of
the date of receipt of the department's notice of a determination or a dispute
resolution decision.
(b) A written request for an
administrative hearing shall be sent to the Office of the Commissioner,
Department for Medicaid Services, Cabinet for Health and Family Services, 275
East Main Street, 6th Floor, Frankfort, Kentucky 40621-0002.
(6) The department shall forward to the
hearing officer an administrative record which shall include:
(a) The notice of action taken;
(b) The statutory or regulatory basis for
the action taken;
(c) The department's decision following
the dispute resolution meeting process; and
(d) All documentary evidence provided by
the:
1. Eligible professional, eligible
hospital, or provider; or
2. The eligible professional’s, eligible
hospital’s, or provider’s billing agent, subcontractor, fiscal agent, or
another individual authorized by the eligible professional, eligible hospital,
or provider to provide information regarding the matter to the department.
(7) A notice of an administrative hearing
shall comply with KRS 13B.050.
(a) An administrative hearing shall be
held in Frankfort, Kentucky no later than sixty (60) calendar days from the
date the request for the administrative hearing is received by the department.
(b) An administrative hearing date may be
extended beyond the sixty (60) calendar days by:
1. A mutual agreement between the:
a. Eligible profession, eligible hospital,
or provider; and
b. The department; or
2. A continuance granted by the hearing
officer.
(8) If a prehearing conference is requested,
it shall be held at least seven (7) calendar days in advance of the hearing
date.
(9) Conduct of a prehearing conference
shall comply with KRS 13B.070.
(10) If an eligible professional,
eligible hospital, or provider does not appear at a hearing on the scheduled
date and the hearing has not been previously rescheduled, the hearing officer
may find the eligible professional, eligible hospital, or provider in default
pursuant to KRS 13B.050(3)(h).
(11) A hearing request shall be withdrawn
only if:
(a) The hearing officer receives a
written statement from an eligible professional, eligible hospital, or provider
stating that the request is withdrawn; or
(b) An eligible professional, eligible hospital,
or provider makes a statement on the record at the hearing that the eligible
professional, eligible hospital, or provider is withdrawing the request for the
hearing.
(12) Documentary evidence to be used at a
hearing shall be made available in accordance with KRS 13B.090.
(13) Information relating to the
selection of an eligible professional, eligible hospital, or provider for
audit, investigation notes or other materials which may disclose auditor
investigative techniques, methodologies, material prepared for submission to a
law enforcement or prosecutorial agency, information concerning law enforcement
investigations, judicial proceedings, confidential sources or confidential
information shall not be revealed, unless the material is exculpatory in nature
as required pursuant to KRS 13B.090(3).
(14) A hearing officer shall preside over
a hearing and shall conduct the hearing in accordance with KRS 13B.080 and
13B.090.
(15) The issues considered at a hearing
shall be limited to:
(a) Issues directly raised in the initial
request for a dispute resolution meeting;
(b) Issues directly raised during the dispute
resolution meeting; or
(c) Materials submitted in lieu of a
dispute resolution meeting.
(16) KRS 13B.090(7) shall govern the
burdens of proof.
(a) The department shall have the initial
burden of showing the existence of the administrative regulations or statutes
upon which a determination was based.
(b) If a determination is based upon an
alleged failure of a provider to comply with applicable generally accepted
business, accounting, professional, medical practices or standards of health
care, the department shall establish the existence of the practice or standard.
(c) The department shall be responsible
for notifying the hearing officer of previous relevant violations by the eligible
professional, eligible hospital, or provider under Medicare, Medicaid, or other
program administered by the Cabinet for Health and Family Services, or relevant
prior actions under 907 KAR 1:671, which the department wishes the hearing
officer to consider in his or her deliberations.
(17) A hearing officer shall issue a
recommended order in accordance with KRS 13B.110.
(18)(a) Except for the requirement that a
request for an administrative appeal process be filed in a timely manner, a
hearing officer may grant an extension of time specified in this section, if:
1. Determined necessary for the efficient
administration of the hearing process; or
2. To prevent an obvious miscarriage of
justice with regard to the provider.
(b) An extension of time for completion
of a recommended order shall comply with the requirements of KRS 13B.110(2) and
(3).
(19) A final order shall be entered in
accordance with KRS 13B.120.
(20) The Cabinet for Health and Family
Services shall maintain an official record of the hearing in compliance with
KRS 13B.130.
(21) In a correspondence transmitting a
final order, clear reference shall be made to the availability of judicial
review pursuant to KRS 13B.140 and 13B.150.
(22) The department’s appeal process for
an eligible professional, eligible hospital, or provider regarding electronic
health record incentive payments.
(22) The department’s appeal process for
an eligible professional, eligible hospital, or provider regarding electronic
health record incentive payments shall be in accordance with 42 C.F.R. 495.370.
Section 15. Actions Taken at the
Conclusion of the Administrative Appeal Process. (1) A stay on recoupment
granted under 907 KAR 1:671 shall not extend to judicial review, unless a stay
is granted pursuant to KRS 13B.140(4).
(2) If during an administrative appeal
process, circumstances require a new or modified determination letter, new
appeal rights shall be provided in accordance with this administrative
regulation.
(3) Thirty (30) calendar days after the
issuance of the final order pursuant to KRS 13B.120, the department:
(a) Shall initiate collection activities
and take all lawful actions to collect the debt; and
(b) May enact:
1. An exclusion or fiscal penalty
pursuant to 42 U.S.C. 1320a-7; or
2. Other action that was held in abeyance
pending the decision of the administrative appeal process.
(4) A department’s decision to subject an
eligible professional’s, eligible hospital’s or provider’s claims to prepayment
review shall not be subject to appeal.
Section 16. Federal Financial
Participation. A policy established in this administrative regulation shall be
null and void if the Centers for Medicare and Medicaid Services:
(1) Denies federal financial
participation for the policy; or
(2) Disapproves the policy. (37 Ky.R.
2111; 2424; eff. 5-6-2011.)
