Jun

29

ARRA & EHR Incentives

I’m back again. Many probably thought I got lost somewhere along the way but I’m still here.  After having too much fun with my sons in Austria (one of my sons plays American football for a Vienna team and my youngest just graduated high school so we were having an all boys vacation), I’m valiantly attempting to get back into the swing of things.

With this blog I’m cheating a bit. Following is a Q&A I responded to at the request of one of my clients and at the request from one of our friends in the Capitol. My biggest caveat at this point is the following is the best news available at the moment but, as with much American Recovery and Reinvestment Act (ARRA), all is subject to change without notice.

As an aside, if a vendor, consultant or any other individual for that matter tells you they have all the answers and the concrete has been set – run! As an example the draft definition of “meaningful use” was recently published and it is far from final. Much is yet to be defined. It is time for all to prepare for what is coming (especially breach notification requirements coming to you in August this year) but HHS and ONC have a long way to go before plans can be finalized and incentives applied for.

Here you go… Q1 How does Medicare Advantage come into play regarding the availability of funds and incentives? A1 Medicare Advantage (MA) comes into play in two ways. When the determination is made that an eligible professional (say physician) is considered a “MA certified” eligible professional qualifies for incentive payments, an assessment will be made to reasonably ensure the eligible professional does not receive duplicate incentive payments for Medicare beneficiaries who are also Medicare Part A and Part B beneficiaries and incentives will be paid accordingly.

This is separate from incentive payments available to eligible professionals submitting Medicare Part A and Part B claims. Also, there are specific MA incentives that are available to HMOs who are “MA organizations” (Title IV, Section 4101(c)). EHR incentives will be paid for Medicare Part A and B, Medicaid or MA – the eligible professional needs to determine which incentives he or she intends to apply for.

Q2 It seems that from reading the language below that there must be three conditions met/exist: * 80% of the entity’s Medicare services * 80 % of the professional services furnished to enrollees of the MA plan * Must work at least 20 hours a week A2 This is true if the services are provided by an entity on contract with the “MA certified” eligible professional (or organization) versus by the MA organization itself. The specific provision states, “…is employed by the organization; or…”. The percentages and time worked only apply to other than the MA organization itself. If the contracted “eligible professional” provides the preceding level of services to the MA organization (percentages and hours), then the employee of the contracted entity or the partner “eligible professional” is eligible for incentives. If the “eligible professional” is an employee of the MA organization, he or she is eligible for the incentives by virtue of being employed by the MA organization (Title IV, Section 4101(c)(2)).

Q3 In the first line of the provision (Title IV, Section 4101(c)(2)), we're making the assumption that the organization is the "MA" organization. A3 That is correct.

Q4 Also in the first line, there is a reference to "a partner of" with no indication as to whether or not this is an outside or internal partner. A4 Ultimately this needs to be defined in rule but it appears to be inferred that this is an external partner given the previous line that indicates someone internal to the MA organization is eligible without the application of percentage or hour requirements.

Q5 What about entities who are Professional Corporations? Would a shareholder be included? A5 This needs to be defined in rule but likely shareholders would not be directly eligible to receive incentive payments. Entities who are professional corporations likely are eligible to receive incentives but for the employed “eligible professionals” rather than external shareholders.

Q6 The reference to furnish at least 80 percent of the entity's Medicare patient care services to enrollees of such organization does not make sense - in the Metropolitan area in Portland, there are several MA plans and it would be unlikely that anyone would be 80 percent of the entity's Medicare patient care services. A6 This also needs to be clarified in rule but it appears the external partner or employee of a contracted entity is referring to the provider of health care services and demonstrates “meaningful use” of an EHR. There are specific provisions that define incentives to MA plans themselves. It would make no sense if the incentives for the health plans were tied to percentages of business (and especially hours of service provided per week).

Q7 Who would be eligible for the subsidized HER, based on this information? A7 This would include eligible professionals who are employees of the MA organization, eligible professionals who are either employees of contracted entities or partners of an MA organization (if they meet the percentage and weekly hour requirements) and MA plans that can be categorized as HMOs. Likely the incentive payments will be paid by organization unless the incentive payments are made to sole practitioners (versus payments made to each physician or eligible professional) because the EHR purchase and EHR use is an organizationally funded and managed.

Q8 A member of Congress stated: "We have been told that this definition, if solely applied, would exclude eligible professionals in all but the largest MA organizations from the incentive program and could prohibit thousands of physicians in (unnamed state) from receiving HIT incentive payments, and we are wanting to verify this. " A8 Given the wording of the act that is not quite true. If the eligible professionals are direct employees of the MA organization, no matter the size, they are eligible for incentive payments. It is true that contracted health care professionals providing services on behalf of the MA organization will not be eligible for incentive payments given it would be difficult to meet the percentage/hourly requirements. Depending on how the final rule is crafted, it could result in eliminating a large number of smaller physicians from receiving the incentives.

The key problem with the provisions of this title is the definition of an MA organization is very vague. If it only includes HMOs and their employees, it is true that most physicians with MA beneficiary patients who represent a fair portion of the physicians’ patient load would not be eligible for the incentives because of the percentage/hour requirements.

On the other hand, analysis should be completed to determine if these same physicians are eligible for the Medicare Part A and B or the Medicaid incentive payments given there are three categories of incentives and all are excusive – the physician decides, likely based on which provides the greatest benefit based on their patient mix. The Medicare Part A and B and the MA incentives appear to be based on actual billing with no threshold for eligibility while the Medicaid incentives are only available to physicians with a certain threshold of Medicaid beneficiaries (e.g., 30% for non-hospital physicians, 20% for non-hospital pediatricians, etc.). Also, there is an additional 10% incentive for physicians in health professional shortage areas.

The bottom line is the Congressperson’s office need to pay close attention to the draft rules that need to be promulgated prior to payment of any incentives (first incentive year is 2011). In addition, the act is unclear regarding the penalties for not adopting a certified EHR and demonstrating meaningful use. It is not clear whether physicians will be required to implement an EHR or whether the incentive payments and later penalties only apply to physicians who implement an EHR. Right now there is still a lot yet undecided at HHS…