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U.S. Senate-passed legislation that extends programs and tax incentives that create jobs includes language to expand the types of physicians eligible for meaningful use incentive payments under the American Recovery and Reinvestment Act. The Senate on March 10 in a 62-36 vote passed its version of H.R. 4213, which previously cleared the House.

ARRA's language--and the Centers for Medicare and Medicaid Services' proposed meaningful use rule--exclude hospital-based physicians from receiving incentive payments. But many industry stakeholders believed that congressional intent was to include physicians who primarily work in ambulatory care facilities owned by hospitals.

ARRA excluded "hospital-based eligible professionals" from receiving meaningful use incentive payments. The law defined these professionals as "an eligible professional, such as a pathologist, anesthesiologist, or emergency physician, who furnishes substantially all of such 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."

An amendment in the Senate-passed bill would remove "setting (whether inpatient or outpatient)" from the definition, and insert "inpatient or emergency room setting." Consequently, physicians furnishing substantially all services in an inpatient or emergency room setting would be excluded, but those in ambulatory facilities owned by the hospital would be eligible for incentive payments. Here's the language:

SEC. 219. EHR CLARIFICATION.

    (a) Qualification for Clinic-Based Physicians.--

    (1) MEDICARE.--Section 1848(o)(1)(C)(ii) of the Social Security Act (42 U.S.C. 1395w-4(o)(1)(C)(ii)) is amended by striking ``setting (whether inpatient or outpatient)'' and inserting ``inpatient or emergency room setting''.

    (2) MEDICAID.--Section 1903(t)(3)(D) of the Social Security Act (42 U.S.C. 1396b(t)(3)(D)) is amended by striking ``setting (whether inpatient or outpatient)'' and inserting ``inpatient or emergency room setting''.

    (b) Effective Date.--The amendments made by subsection (a) shall be effective as if included in the enactment of the HITECH Act (included in the American Recovery and Reinvestment Act of 2009 (Public Law 111-5)).

    (c) Implementation.--Notwithstanding any other provision of law, the Secretary may implement the amendments made by this section by program instruction or otherwise.

Full text of H.R. 4213 as passed by the Senate soon will be available at congress.gov. The bill now returns to the House for consideration of Senate changes.

--Joseph Goedert