House Calls for Suspension of EHR Incentive Payments under HITECH Act

Hands on keyboard in circleOn Thursday, October 4, 2012, in a letter to Secretary Sebelius of the United States Department of Health & Human Services (HHS), the United States House GOP called on HHS to suspend incentive payments for the adoption and implementation of electronic health records (EHRs) otherwise authorized under the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH Act).  The GOP also asked HHS to delay the imposition of penalties on providers who choose not to use EHRs in their practice (such penalties that pursuant to the HITECH Act provisions are to take the form of reductions in Medicare reimbursements in 2015). 

The GOP called for this action on grounds that the criteria for demonstrating meaningful use under Stage 2 are weaker than Stage 1 criteria and do not move the nation forward quickly enough towards interoperability in health information technology systems.  The GOP asserts that the Stage 2 criteria eliminates the Stage 1 criteria that “required providers to test the ability to exchange information with other providers.”  As a result, the GOP asserts, hospitals and providers who are deemed Stage 1 meaningful users are not required to know whether their systems are capable of exchanging data. In connection with its interoperability concerns, the GOP letter calls on HHS to “eliminate the subsidization of business practices that block the exchange of information between providers.”

The GOP letter does not mention the Stage 2 requirement that meaningful users must actually exchange EHR data with at least one other healthcare provider who is using an EHR developed by a different software vendor.  If this does not test interoperability, then what does?  Further, as for the call to eliminate subsidization of business practices that block the exchange of information between providers, some business practices are in place in order to comply with requirements under the HIPAA Privacy Rule and Security Rule that require providers to protect sensitive patient information, as well as with specific requirements under the Stark Law regarding the use of a provider’s EHR by non-employed physicians.

As further support for its suspension request, the GOP letter also cites to an analysis of Medicare data by the New York Times that stated, “The move to electronic health records may be contributing to billions of dollars in higher costs for Medicare, private insurers and patients by making it easier for hospitals and physicians to bill more for their services, whether or not they provide additional care.”  The New York Times analysis was based on 2010 Medicare reimbursement data.  The HITECH Act’s Final Rule on Meaningful Use was not released until July 28, 2010, was not effective until September 28, 2010, and providers and software vendors would not have had time to comply with the Stage 1 meaningful use and certification requirements to justify a relationship of Medicare’s 2010 reimbursements to the implementation and meaingful use of certified EHRs pursuant to the HITECH Act. 

Finally, the GOP letter calls on HHS to “significantly increase” the criteria for being a Meaningful User of an EHR.  The letter states, for example, that “only requiring radiology and laboratory orders to be electronic 30 percent of the time and medication reconciliation and electronic prescribing to occur just 50 percent of the time is woefully inadequate.”   The GOP letter does not mention the changes in standards that had to occur (and arguably still must occur) in certain regulatory standards for radiology, labs, and pharmacy and electronic prescribing.  In essence, multiple stakeholders that do not receive incentives under the HITECH Act are being called upon to make HIT changes that will accommodate the HITECH Act’s interoperability goal.   

Stay tuned for upcoming articles further exploring the requirements of the Stage 2 meaningful use criteria, as well as the recent New York Times report on fraudulent the potential use of EHRs to increase reimbursements.

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Leave a reply. Please note that although this blog may be helpful in informing clients and others who have an interest in information privacy and security, it is not intended to be legal advice. The information on this blog also should not be relied upon to form an attorney-client relationship.

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