Erskine's IDN would have benefited significantly, as would have many other hospitals and physicians working in the hospital-related outpatient environment, from the proposed amendment to the EHR subsidy section of the American Recovery and Reinvestment Act of 2009, also known as the stimulus law.
So news that the EHR subsidy program had been excised from the jobs bill was a disappointment to Erskine and many other health IT cognoscenti who consider it a badly needed fix.
“There's going to be good days and bad days as we go along,” Erskine said.
He and other health IT leaders say they will continue to lobby Congress and the Obama administration for either legislative or administrative relief.
Language in the draft legislation would have amended the exclusions section of the stimulus law dealing with who is and who is not eligible for participation in the EHR subsidy programs to be administered by the CMS under Medicare and Medicaid.
Under current law, the exclusions ban “hospital based” physicians who work in either an “inpatient or outpatient” setting from receiving separate EHR subsidies. The provision assumes hospital-based physicians will use EHRs provided by their hospitals and is clearly aimed at preventing physicians from double dipping, since hospitals are also eligible for subsidy payments.
The proposed Senate Finance Committee amendment would have dropped hospital-based “outpatient” physicians from the exclusion, thus making them eligible to receive federal reimbursements for the purchase, installation and use of EHR systems.
In late December 2009, the CMS released a 565-page proposed rule to flesh out the subsidy program. It made the ban on hospital-based outpatient physicians even more draconian and was a misinterpretation of the law, according to Erskine.
“The CMS rule spends eight pages or so on reasons why it wants to exclude provider-based physicians with the professional and technical fees together,” Erskine said. But a conference committee report on the stimulus law written as House and Senate versions of related bills were undergoing reconciliation indicates legislators never intended to exclude hospital-based, outpatient physicians, he said.
Erskine has been working with the Association of Medical Directors of Information Systems, a professional association of physicians working in medical informatics, to draft the group's formal response to the CMS rule. The public comment period on the rule is open through mid-March. Erskine's contribution to the AMDIS effort listed 16 “arguments” why hospital-based outpatient physicians ought to be able to receive federal EHR subsidy money.
One of those arguments, according to Erskine's draft, is that the Feb. 12 conference report, written only a few days before the stimulus legislation passed Congress, “clearly states the intent of the statutory regulation,” Erskine wrote.
Erskine said he'll lobby his own legislators to reinstate the amendment in future legislation in addition to working on the request for a change in the CMS rule via the public comments.
In addition to AMDIS, the American Hospital Association and Medical Group Management Association were supportive of the amendment in the jobs bill.
“We're extremely disappointed that the majority leader stripped this out and we hope it's put back in,” said Richard Pollack, executive vice president of the AHA. Pollock vowed that the AHA will “work very aggressively” to have the amendment reinstated. “This thing is still not nailed down.”
Robert Tennant, senior policy adviser for the MGMA, said the number of physicians affected by the exclusion “would be substantial.”
Tennant said the exclusion was clearly designed to prevent somebody who was working in the hospital, using the hospital's EHR and who probably had no financial stake in that system, from receiving additional federal funds. Tennant said excluding those physicians “would be good public policy.”
But the law, he said, “wasn't designed to exclude a surgical group that has gone ahead and purchased an EHR on their own, but happens to have all of their place-of-service codes from the hospital.”
The CMS, however, in its proposed rule, made place-of-service codes on billing claims “the defining characteristic” for eligibility or exclusion from the program, Tennant said. According to the CMS rule, eligibility determination is to be made irrespective of any billing, employment or contract arrangements between a physician and a hospital. According to the CMS rule, if at least 90% of a physician's billing codes were hospital inpatient (Code 21), outpatient (Code 22) or emergency room (Code 23) place of service codes, then that provider was to be excluded, Tennant said.
Relying, as CMS does, on these so-called “global bills” as a universal marker for where a physician works is a mistake, Tennant said.
“If I have a problem with my leg that requires surgery, the global charge for that will include pre-op observation and the post-op review,” Tennant said. The surgery will be performed in the hospital, but “one week later I'm back in the outpatient setting to see that it's healing well.”
“That's all captured in one bill,” Tennant said. “The place of service would be in-patient, the bulk of the cost is the surgical procedure, but they bundle in all of the pre- and post-op aspects. The surgeons could have their own office, their own EHR, but because their place of service code was in-patient, they could be excluded.”
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