A new law significantly expands the number of physicians eligible for Medicare or Medicaid incentive payments if they demonstrate meaningful use of electronic health records.

Provider associations commenting on the meaningful use rule consistently told the Centers for Medicare and Medicaid Services the same two things: The meaningful use criteria was unrealistic and physicians working in hospital-owned outpatient facilities should be eligible for incentive payments. Now, Congress has fixed the second problem, passing a bill that President Obama signed that includes language to make physicians who primarily practice outside of the inpatient side of a hospital eligible for incentives.

The bill, H.R. 4851, is now law. Among other issues, it changed the definition of "hospital-based physician" in the HITECH Act to exclude only physicians who primarily work in inpatient and emergency room settings.

It's not clear if CMS was planning to expand physician eligibility in the final meaningful use rule expected in late spring. In the proposed rule, CMS itself estimated up to 13 percent of family physicians could be excluded from incentive payments because they work in hospital-owned outpatient facilities and are considered hospital-based physicians under HITECH's original definition. Provider groups estimated up to 27 percent of family physicians would be excluded.

Because of the specific language in HITECH, CMS officials believed they had limited room to make modifications when writing the proposed rule. But dozens of members of Congress in both houses in recent weeks joined industry stakeholders in telling CMS the proposed rule's exclusion of all "hospital-based" physicians violated congressional intent. Industry stakeholders have worked for several months to get clarifying language attached to any piece of legislation that looked like it might pass and finally succeeded.

Now comes another legislative effort to expand eligibility for meaningful use incentives to behavioral health professionals and facilities. A bill recently introduced in the U.S. House would extend eligibility to clinical psychologists, clinical social workers, psychiatric hospitals, substance abuse treatment facilities and mental health treatment facilities. The bill, H.R. 5040, was referred to the Energy and Commerce, and Ways and Means Committees. It will take another concerted effort to get this bill attached to moving legislation and get it enacted before CMS completes its work on a final meaningful use rule.

Now, if we could just do something about the unrealistic meaningful use criteria...

 

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