Health Care Lawyer Blog

Today's post is authored by FHW member Suzanne D. Nolan

The Department of Health and Human Services (HHS) is taking two steps to make it easier for eligible professionals, such as physicians, dentists, oral surgeons, optometrists, podiatrists and chiropractors, to meet the requirements for Meaningful Use of Electronic Health Records (EHRs) and thus qualify for Medicare EHR incentive payments.

First, HHS is delaying the start of Stage 2 Meaningful Use of EHRs from 2013 to 2014 for eligible professionals who attest to meeting the Stage 1 Meaningful Use requirements for calendar year 2011. Many eligible professionals were waiting until 2012 to attest to Stage 1 Meaningful Use out of concern they would not be able to meet the Stage 2 Meaningful Use requirements in 2013 which would reduce the incentive payments for which they could qualify. With the extension, eligible professionals who attest to Stage 1 Meaningful Use for 2011 by the February 29, 2012 deadline can qualify for incentive payments for 2011 as well as payments for 2012 and have until 2014 to qualify for Stage 2.

Second, as another inducement to adopt EHRs, HHS also announced that it is providing education and training to eligible professionals who have registered in the Medicare EHR Incentive Program but have not yet met Meaningful Use requirements.

There is also a Medicaid EHR Incentive Program in which eligible professionals who furnish at least thirty percent of their services to Medicaid patients can participate, if they are not participating in the Medicare EHR Incentive Program. By taking appropriate steps prior to the end of the year, eligible professionals who wish to participate in the Medicaid EHR Incentive Program may be able to qualify for a Medicaid incentive payment. The Medicaid EHR Incentive Program does not require eligible professionals to meet meaningful use requirements in their first year of participation and thus it may be easier for professionals to qualify for incentive payments under this program.

Providers with questions about implementing EHR systems should contact Sue Nolan at (248) 952-0400.

A recent New York Times article spotlighted the use of telepsychiatry, or the use of web-based video conferencing technology such as Skype or iChat, to connect patients with psychiatrists. The article described a patient receiving an appointment “reminder” on her iPhone, then fixing herself a mojito and lounging poolside while her therapist counseled her via webcam.

The use of such technologies to provide health care remotely (commonly referred to as telemedicine) may sound idyllic, but can also raise numerous compliance issues for health care providers. For example, is the use of such technologies within the scope of practice? Do state laws place a restriction on the use of telemedicine? Is the standard of care for services provided via telemedicine the same as services provided in real life?

The following are a few issues that providers should consider before using telemedicine as a means to treat patients.

What do state statutes or licensing boards say about the use of telemedicine? First and foremost, a provider should check with his/her state licensing board or consult applicable state statutes to determine if telemedicine is contemplated within the scope of practice. For example, in Michigan the statute defining practice of medicine does not include telemedicine, as some other states such as Indiana. In addition to statutory guidance, state licensing boards may have issued informal or formal guidance to providers regarding the use of telemedicine. If the state licensing board is silent on the issue, a provider should consult with any professional societies he/she may belong to (American Medical Association, American Psychological Association, etc.) for information.

After the jump - additional considerations for providers.

Continue reading "Telemedicine: A Checklist for Health Care Providers" »

HITPC Issues Preliminary Recommendations for Stage 2 Meaningful Use Objectives, Solicits Public Comment - Last week the federal Health Information Technology Policy Committee (“HITPC”) released its proposed “Stage 2” objectives for meaningful use – i.e., what healthcare providers will need to do in order to quality for Medicare/Medicaid incentive payments.

The Stage 2 objectives place a heightened emphasis on health information exchange across institutional boundaries, and focus heavily on computerized physician order entry (CPOE) and e-prescribing. For more information, and for details on how to submit a public comment, click here.

U.S. House Vote on Healthcare Bill Repeal to Take Place This Week – Speaker of the House John Boehner (R-Ohio) has announced that the House’s “symbolic” vote on the repeal of PPACA would take place this week. The vote, which was originally scheduled for Jan. 12, was delayed following the Jan. 8 shooting in Arizona that left six dead and several others wounded, including Congresswoman Gabrielle Giffords (D-Ariz.).

The “symbolic” vote is largely to fulfill promises to the constituencies of the newly-elected GOP members, given that regardless of what happens in the House, an actual repeal of PPACA is impossible. The Democratic-led Senate will not back a House vote, and even if the bill does pass President Obama will certainly veto it. Additionally, the bill’s main flaw (dubbed the “Repealing the Job-Killing Health Care Law Act”) is that it seeks to repeal PPACA in its entirety, and many of even the most emphatic “anti-Obamacare”-ites have agreed that certain provisions of PPACA, such as those that allow children to stay on their parents insurance up until the age of 26, or ones that mandate coverage for children with pre-existing conditions.

The vote is tentatively scheduled for Jan. 19, according to a scheduled released by House Majority Leader Eric Cantor (R-Va.)

Medicare Rescinds Payments for End-Of-Life Counseling – Speaking of repealing, the Centers for Medicare and Medicaid Services (CMS) has announced that Medicare will not issue payments to physicians who advise patients on end-of-life care and other advance-care planning during annual wellness visits. The payment policy had taken effect on Jan. 1 but was yanked a mere 5 days later. The advanced-care counseling provision was highly contested by critics who claimed that the effort would lead to “government-sanctioned euthanasia” or “federal death panels.”

This week the Office of the National Coordinator for Health Information Technology (“ONC”) announced that the Certification Commission for Health Information Technology (“CCHIT”) and the Drummond Group, Inc. (“DGI”) were the first technology review bodies authorized to test and certify EHR systems for compliance with the "meaningful use" rules. This means that EHR vendors can begin to have their products certified.

This announcement is of special import to health care providers who intend to implement EHR systems in order to qualify for Medicare and Medicaid incentives – and avoid the eventual penalties for failing to do so that take effect in 2015. Specifically, it is not enough for a provider to implement an EHR system – the technology platform used must be “certified” in order to ensure accurate transfer and exchange of information from provider to provider.

With the initial two ONC-ATCBs now named, EHR vendors can apply to them for certification of their products. By purchasing certified products, providers can be assured that the products support achievement of meaningful use objectives.

CMS is also working to create an online system for providers to register and attest (i.e., demonstrate use of for the HER incentive programs. The first incentive payments are targeted to be made in May 2011. Meanwhile, ONC is also carrying out new programs of technical assistance and training for the use of EHRs, especially for smaller hospitals and physician practices.

For more information, visit the ONC website.

Today's post was authored by FHWN attorney Maro E. Bush.

The Centers for Medicare and Medicaid Services (CMS) and Health and Human Services Office of the National Coordinator for Health Information Technology recently issued their much-anticipated final meaningful-use information technology regulations that hospitals and physicians must follow to tap into some $27.3 billion in financial incentives under the HITECH act.

In its final meaningful rule published on Tuesday, the CMS abandoned its original all-or-nothing approach to offering incentives for electronic health record (“EHR”) adoption. Healthcare providers now have various ways of reporting objectives to demonstrate meaningful use of EHRs. Additionally, some objectives that are deemed too difficult to achieve by the original 2011 deadline will be delayed a year.

One of the major changes in the final rule requires providers to meet a “core” group of objectives, including electronic prescribing, maintaining an active medication list and providing patients with an electronic copy of their health information upon request. In its proposed meaningful use rule published in January, CMS had required providers to meet 25 measures and hospitals to meet 23 measures in order to demonstrate they were meaningfully using EHR. However, critics of the rule argued that meeting the objectives would impose a heavy burden on providers. Under the final rule, physicians must meet 15 of the core requirements, and hospitals must meet 14. Providers must also choose and meet an additional 10 measures from a “menu set” of procedures, but may defer up to five of them until the next implementation stage.

CMS anticipates that the new approach will allow providers and hospitals to implement the basic elements of meaningful EHR use while qualifying for incentive payments. Through meaningful EHR use, CMS aims to improve the quality, safety and efficiency of healthcare services; reduce healthcare disparities; engage patients and their families; improve the coordination of care; improve population and public health; and ensure the privacy and security of personal medical information.

Physicians and other health care providers who want to learn more about implementing EHR systems and qualifying for incentive payments should contact Maro E. Bush or Mercedes Varasteh Dordeski.