Medicare and Medicaid Programs; Electronic Health Record Incentive Program

Current Proposed Regulation Exercise

Medicare and Medicaid Programs; Electronic Health Record Incentive Program

The Department of Health and Human Services controls this regulation. I am choosing this regulation because I sell digital radiology hardware to dentist which is driven by the Electronic Health Records systems. If this was passed it would incentivize dental professionals to invest in the technology that I sell.

The rule will define what an eligible EHR system is, who is eligible for the incentive, how much the incentives will be, and penalties for failing to meet the requirements of an eligible EHR system. All comments were due by 1/13/2010

My Public Comment: EHR's are the next generation of the future of the medical community. The ability for medical professionals to be able to pull up a complete medical history on any patient in a matter of seconds is invaluable to both the patient and to the medical professional. In an emergency situation the health history is at the medical professional's finger tips. The other great benefit I see to this regulation is that it will help stimulate the economy. Medical professionals will see an economical benefit to up grading their practice which will drive more manufacturing and the development of technology driven equipment in the medical community, which will make medical professional more efficient and more accurate in their diagnosis and treatment. My one question to the writers would be; can you shorten the regulation? If there are 550 plus pages it is going to be difficult to interpret and apply, and if it is difficult to interpret and apply then it may not be taken advantage of properly. My goal would be to encourage the passage of this because it is an economic stimulus that would not only encourage the spending of money but the spending of money on technology that would have a huge positive impact on every American; but it needs to be simplified.

Because I would have submitted a comment and the rule passed and I apposed the rule I could challenge the validity of the rule in court.

If the rule is passed and I wanted to challenge it there are 5 legal theories that I could use to in an attempt to have the regulation declared invalid and overturned in court. The first is arbitrary and conspicuous; which means that all I have to do it prove that there is no evidence to support the rule. The second is the substantial evidence test; which is showing that there is more convincing evidence in support of the regulation than against it. The third is compliance with the APA requirements; which requires that I show that the agency did not comply with the proper procedure for enacting the rule. The fourth is unconstitutional; which would require that I show the rule is not in compliance with the constitution. The fifth is Ultra Vires or "beyond it powers",