The physician incentive payments/penalty provisions that piggybacked their way onto the federal healthcare reform law has physicians concerned and scrambling. Like blood in water to a shark, IT vendors and advisors are drawn to the opportunities that the new law has created; and physicians need to be educated and wise.
The so-called "HITECH" provisions of the federal healthcare reform law create a pot of about $34 billion worth of incentive payments for eligible professionals and hospitals that attain meaningful use of certified electronic healthcare records (EHR) technology. To obtain any money, eligible parties will have to demonstrate full compliance no later than 2015, and earlier (2011) if they want the full benefit. Medicare has allocated roughly $44K worth of incentives for each compliant physician; and Medicaid offers another $20K roughly.
So, what’s required? First, physicians have to determine if they are an "eligible professional". For instance, hospital based physicians are not considered to be eligible professionals. Second, the EHR will have to implement "certified" health information technology (HIT). The certification process has not yet been locked down by the government, but it is expected that the technology will have to enable physicians to at least-
- Electronically record, store, retrieve, and manage meds, lab, imaging and provider referrals;
- Automatically generate real time alerts re adverse drug interactions and enable the doctor to see if the drugs are in a formulary; and automatically track, record and generate reports on the number of alerts responded to;
- Enable the doctor to electronically transmit prescriptions to patients;
- Record, modify and retrieve patient demographic data, including language, insurer, gender, race, ethnicity, DOB;
- Record and chart changes in patient vital signs; automatically display BMI; receive and display all lab work; include a patient reminder list for preventative and follow up care;
- Implement clinical decision support rules (e.g. clinical pathways);
- Provide patients with online access to their clinical information; and
- Comply with certain encryption/decryption requirements (HIPAA related).
Unless the HIT can meet the foregoing, and a lot more criteria, it will not meet the certification requirements.
Third, the technology must meet the so called "meaningful use" criteria, which is currently under development and not expected to be delivered until the Summer of 2010. In short, to receive the incentive money, physicians will have to (1) adopt certified EHR technology; (2) achieve meaningful use; and (3) apply for the incentive payment.
But it is not the mere incentive propelling physician interest and concern. It is also the disincentive, the penalty, the law also contains. Since EHR is considered to be such a critical aspect of the direction that the government intends the delivery of healthcare to take, the failure of an eligible physician to follow through on the EHR regs will result in a reduction of Medicare Fee Schedule payment, beginning 2015! The cut off for the incentive money is currently 2015, which happens to be the first year that physicians who fail to comply will see their MFS fees cut by 1% each year they do not comply, for a maximum potential reduction of 5%. That’s right. Physicians who fail to comply with the EHR related regs will have their Medicare payments cut!
It is easy to see then why physicians are scrambling to comply. And, in some rare instances, they are scrambling into the hands of inept or unscrupulous EHR vendors. When dealing with EHR vendors, physicians must pay careful attention to the contract, which must:
- Assure that the system will be certified according to the HITECH Act;
- Assure that the system will meet the meaningful use guidelines;
- Qualify the physician for HITECH incentive payments;
- Allow the physician to terminate the relationship in the event the above is not met;
- Require the vendor to hold the physician harmless and to indemnify the physician in connection with any losses arising in connection with the system and;
- Provide for the transferability of electronic data to the physician if the contract is terminated.
The technology phase-in is just one step in the direction of profound change. Given its economic impact, however, the change must be handled carefully.
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With over 20 years of healthcare law experience following his experience as legal counsel for the Florida Medical Association, Mr. Cohen is board certified by The Florida Bar as a specialist in healthcare law. With a strong background and expertise in transactional healthcare and corporate matters, particularly as they relate to physicians, Mr. Cohen’s practice immerses him in regulatory, contract, corporate, compliance and employment related matters. As Founder of The Florida Healthcare Law Firm, he has distinguished himself and his firm for providing exceptional legal services with the right pricing, responsiveness and ethics.
