907 KAR 6:005. Electronic health record incentive payments

Link to law: http://www.lrc.ky.gov/kar/907/006/005.htm
Published: 2015

      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.)
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