Electronic Health Records FAQs

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The Health Information Technology for Economic and Clinical Health (HITECH) Act, passed as part of the American Recovery and Reinvestment Act of 2009 (PL 211-5), authorized incentive payments to eligible professionals (EP) and eligible hospitals to promote the “adoption and meaningful use of certified electronic health record technology (CEHRT).” The program is being implemented over a six-year period.

On July 28, 2010, the Centers for Medicare and Medicaid Services (CMS) published a final rule that indicated that the program would be adopted in three stages, allowing EPs to ease into the transition. CMS released the Stage 3 Final Rule this year. Implementation of the complete program is set for 2017.

Any doctor of medicine, osteopathy, dental surgery, dental medicine, podiatry or optometry and any chiropractor who is not hospital-based is considered an EP, or someone who could receive an incentive payment to implement a CEHRT. Hospital-based doctors—those who perform 90 percent of their services in a hospital inpatient or emergency room setting—are not because the facility itself receives the incentive payment. Each EP who is part of a physician practice may qualify for an incentive payment as long as each EP demonstrates “meaningful use” of CEHRT. However, each EP is eligible for only one incentive payment per year, even if that EP is part of multiple practices or provides services in multiple locations.

Any encounter where a medical treatment is provided and/or evaluation and management services are provided should be considered a "patient encounter."

ASCs were not addressed in HITECH, so while there is a CEHRT for hospitals and one for physician offices, there is no CEHRT for ASCs. It is unlikely that ASCs will have the necessary certified EHRs in place in order to meet the 50 percent requirement by the current deadline because the purchase of EHRs by ASCs has not been subsidized like it has for physician offices and hospitals and the certification standards were developed without ASCs in mind.

Physicians who operate in ASCs, however, are still EPs, and must meet the meaningful use requirements. If a physician were to see a patient in an office setting, perform the patient’s surgery in an ASC and conduct a follow-up appointment in an office, two of the three patient encounters (67 percent) would take place in a setting equipped with a CEHRT (assuming that the physician office is equipped as required). If most of the physician’s cases were managed like this, meaningful use requirements would be met. Physicians who work primarily in an ASC setting, however, might be subject to penalties. In addition, more physicians could be affected if CMS increases this threshold in the future.

There are four exceptions to this requirement, including:

  • lack of availability of Internet access or barriers to obtaining information technology (IT) infrastructure;

  • a time-limited exception for newly practicing EPs or new hospitals who will not otherwise be able to avoid penalties;

  • unforeseen circumstances such as natural disasters (handled on a case-by-case basis); and

  • for EPs only, exceptions due to a combination of clinical features limiting a provider’s interaction with patients, or if an EP practices at multiple locations and lacks control over the availability of CEHRT at one or more of the locations.

The last exception could protect physicians who frequently practice at an ASC, but probably not physician owners who have more control over whether the ASC implements a CEHRT. In addition, physicians whose primary specialty is anesthesiology may apply for an exemption.

Physicians seeking an exemption must apply for one with CMS by July 1, 2014, and annually thereafter. However, there is a five-year limit on all exceptions, so eventually all eligible professionals will need to meet meaningful use requirements or face reduced Medicare payments.

Just as the incentive payments were granted to physicians, any penalties that are assessed will be deducted from the physician’s fee, not the ASC's facility fee. Physicians who fail to meet meaningful use requirements for at least three months in 2014 will be penalized beginning in 2015. The penalties are cumulative, so while EP payment reductions are capped at 1 percent each year (2 percent in 2015 for a physician subject to the one-time payment adjustment for e-prescriptions in 2014), failing to implement a CEHRT could potentially result in penalties of up to 5 percent. This figure will be impacted by the number of physicians who are meaningful users after 2018. If more than 75 percent of eligible providers meet meaningful use requirements, the maximum penalty will be only 3 percent for 2019 and subsequent years. However, if less than 75 percent report, the maximum penalty for not reporting will be 5 percent for 2019 and subsequent years.

Physicians who first demonstrated meaningful use in 2011 or 2012 must demonstrate meaningful use for a full year in 2013 to avoid the payment adjustment in 2015.

Physicians who demonstrate meaningful use in 2013 must demonstrate meaningful use for a 90-day reporting period in 2013 to avoid the payment adjustment in 2015.

Physicians who first plan on demonstrating meaningful use in 2014 must demonstrate meaningful use for a 90-day reporting period in 2014 to avoid the payment adjustment in 2015. This reporting period must occur in the first 9 months of calendar year 2014, and EPs must attest to meaningful use no later than October 1, 2014, to avoid the payment adjustment.

Physicians must continue to demonstrate meaningful use every year to avoid payment adjustments in subsequent years.

*If you are eligible to participate in both the Medicare and Medicaid EHR Incentive Programs, you MUST demonstrate meaningful use to avoid the payment adjustments. You may demonstrate meaningful use under either Medicare or Medicaid.

*If you are only eligible to participate in the Medicaid EHR Incentive Program, you are not subject to these payment adjustments.

Yes. EPs who practice in multiple locations must have 50 percent or more of their patient encounters during the reporting period at a practice/location or practices/locations equipped with certified EHR technology. Every patient encounter in all Places of Service (POS) except a hospital inpatient department (POS 21) or a hospital emergency department (POS 23) should be included in the denominator of the calculation, which would include patient encounters in an ambulatory surgical center (POS 24).

ASCA is working with Congress and CMS on immediate and long-term solutions to EHR adoption in the ASC setting. To provide temporary relief to ASC physicians who may face penalties, ASCA is advocating for the Electronic Health Fairness Act of 2015, sponsored by US Representative Diane Black (R-TN). If enacted, the legislation would exclude ASC patient encounters from counting towards a physician’s 50 percent meaningful use requirement for three years.

In addition, through in-person meetings and written comments to all proposed rules, ASCA is working with regulators to educate them on the industry issues surrounding EHR requirements. An EHR Stakeholder Group of ASCA members and vendors has also been established. That group held its first meeting in Chicago in October and is working, proactively, to develop standards appropriate for the workflow of ASCs.

For more information on EP payment adjustments, view the Payment Adjustments and Hardship Exceptions Tipsheet for EPs.

For more information about the Medicare and Medicaid EHR Incentive Program, please visit www.cms.gov/EHRIncentivePrograms.

Stage 2 Data Elements Tipsheet for Eligible Professionals.

For more information, please contact Kara Newbury at knewbury@ascassociation.org.

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