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HealtHITechLaw HIPAA, HITECH and Beyond

HITECH Meaningful Use: Optimization and Expansion

Posted in Behavioral Health, Legislation, Meaningful Use

The Health Information Technology for Economic and Clinical Health Act (“HITECH”) made available an estimated $27 billion in federal incentive payments to medical professionals and hospitals when they adopt certified Electronic Health Records (“EHRs”) and demonstrate meaningful use of the EHRs.  Eligible Professionals (“EPs”) can receive as much as $44,000 through Medicare, or as much as $63,750 from Medicaid, while eligible hospitals stand to receive millions for implementation and meaningful use of certified EHRs.

As of June, more than 100,000 health care providers have received more than $6 billion in meaningful use incentive payments paid in the first year of the program.  In Ohio alone, providers have received more than $250 million in incentive payments.  EHR utilization certainly is increasing — to the benefit of providers, patients, and even payers.  There is no shortage of commentary on this development.  What has not received enough attention to date, however, is the fact that many types of medical professionals may not become eligible for incentive payments — even if they do become “meaningful users” of EHRs.

Who Is Eligible Now?

Under the Medicare incentive program, the following five types of professionals may become eligible to receive payments:  (1) doctors of medicine or osteopathy; (2) doctors of oral surgery or dental medicine; (3) doctors of podiatric medicine; (4) doctors of optometry; and (5) chiropractors.  The Medicaid program is slightly different, providing the following professionals the opportunity to qualify:  (1) physicians; (2) dentists; (3) certified nurse-midwives; (4) nurse practitioners; and (5) physician assistants practicing in a Federally Qualified Health Center (FQHC) or Rural Health Center (RHC) led by a physician assistant.  Acute care hospitals, including children’s hospitals, may become eligible under both Medicare and Medicaid.

Although these provider types are numerous, they are by no means exhaustive.  Notably absent from the eligible providers are mental health and substance abuse professionals (who would not otherwise fit into a category, such as a psychiatrist).  Many other provider types — such as psychiatric hospitals, community mental health facilities, and substance abuse treatment programs — also do not fit within the incentive framework.  As health care delivery continues to evolve, and combined with a shift to more integrated physical and mental health, the system must find ways for a wider array of provider types to receive incentives.

Temporary Solution:  Reassignment of Incentive Payments

For certain facilities ineligible to receive incentive payments (because they are not en eligible hospital), there may be a short-term solution.  If the facility employs or has a valid contractual arrangement with an eligible professional which permits the facility to bill and receive payment for the professional’s covered professional services, that professional may reassign her incentive payments to the facility.  The professional may reassign the incentive payment to only one employer or entity, however, and the amount reassigned must be the entire incentive payment.  Under the Ohio Medicaid Provider Incentive Program (“MPIP”), the employer or entity to which payment is reassigned must be an Ohio Medicaid provider with an active Ohio Medicaid provider agreement.  When considering reassignment of incentive payments, both the facility and provider must take care to be consistent with applicable Medicare and Medicaid laws and regulations, specifically those related to fraud, waste, and abuse.

Possible Long-Term Solution:  A Legislative Fix

Expansion of the classes of providers eligible themselves for incentive payments may happen legislatively.  H.R. 6043, introduced this Summer, would extend eligibility for meaningful use incentives to mental health and substance treatment providers and facilities.  Specifically, the following types of providers could become eligible if the bill is enacted into law:  (1) behavioral health, mental health, and substance abuse treatment professionals; (2) clinical psychologists; (3) licensed social workers; (4) psychiatric hospitals; and (5) residential and outpatient mental health and substance abuse treatment facilities.  This bill follows on the heels of a similar Senate bill introduced in Spring of 2011, S. 539.  We will continue to monitor this legislation, as well as any other developments on the meaningful use front.