SZD Health Law Scan : Health Care Lawyers & Attorneys : Schottenstein Zox & Dunn Law Firm : Strategic Planning, Managed Care, Insurance : Columbus, Cleveland, Cincinnati, Central Ohio

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Does this reach hospital employed-physicians and physicians employed by hospital-affiliated practices?

On December 30^th, the Centers for Medicare and Medicaid Services released its proposed rule for the American Recovery and Reinvestment Act (ARRA) of 2009 electronic health record incentive program. This Interim Final Rule represents the first step in an incremental approach to adopt standards, implementation specifications, and certification criteria to enhance the functionality, utility, and security of health information technology and to support its meaningful use. Among the issues that will impact providers is which physicians will qualify for the Medicare eligible professional EHR incentive payments.

ARRA provides that no Medicare incentive payments for meaningful use of certified EHR technology may be made to hospital-based eligible professionals. ARRA defines a “hospital-based professional” as an otherwise eligible professional, such as a pathologist, anesthesiologist, or emergency physician, who furnishes substantially all of his or her covered professional services in a hospital setting (whether inpatient or outpatient) and through the use of the facilities and equipment, including qualified electronic health records, of the hospital.

Under the propose rules, the determination of whether an eligible professional is a hospital-based eligible physician is to be made on the basis of the site of service (as defined by the DHHS Secretary). Based on the language in ARRA and the proposed rule, it appears the EHR incentive payments will not be made to physicians who:

• furnish “substantially all” (quantified by CMS as at least 90% of a physician’s services)
• of their “covered professional services”
• in a “hospital setting” (including place of service codes 21 – Inpatient Hospital, 22 –   Outpatient Hospital, and 23 – Emergency Room)
• that is either “inpatient or outpatient” and
• through the use of the facilities and equipment of the hospital, including the qualified EHR of the hospital.

It is important to point out under these proposed rules that “hospital-based” does not focus on the employment or billing arrangement, but rather on the site of service. The foregoing may mean that in situations where a hospital employs a physician and handles the physician’s billing, this arrangement in and of itself does not make a physician “hospital-based.” If the physician’s practice is not conducted in a facility that is part of the site “licensed” as a hospital, then under the proposed rules the physician may not be practicing in a “hospital setting” and therefore not considered “hospital based,” assuming of course the physician does not exceed the 90% threshold “site of service” test. Remember, however, that the EHR rules are only proposed at this time. These situations may be addressed more clearly in the final rule scheduled to be published in March 2010. Stay tuned.

This post was co-authored by Anthony Shaffer.