Physicians must prepare for new EHR regulations

Doctors hoping to obtain a share of an estimated $27 billion in federal incentive bonuses for implementing electronic health records would have to meet a wide range of new “meaningful use” requirements under proposed regulations released by the Centers for Medicare & Medicaid Services.

The two dozen benchmarks – which include such mandates as recording 50 percent of lab results and fulfilling 80 percent of patient requests for health information electronically by the end of 2012 – were issued by CMS on Dec. 30 as part of a long-awaited draft regulation defining “meaningful use” of electronic health records technology.

The proposal was published Jan. 13 for a 60-day public comment period.

Observers expect the final version will be quite similar to the proposed rules, and providers must be ready if they want to earn the maximum incentive payments.

“Depending on when you adopt … the bonus could be higher,” said health care attorney David Szabo, a partner at Edwards, Angell, Palmer & Dodge in Boston.

At some point after 2015, he noted, “the chance to earn a bonus goes away and all you can do is avoid a [Medicare or Medicaid] penalty.”

The new regulation implements provisions of last year’s $787 billion stimulus package, which called for incentive payments to eligible professionals and hospitals that achieve “meaningful use” of a certified EHR system starting in 2011.

The law left it to CMS to explain what “meaningful use” actually means. (A separate proposal, issued by the Office of the National Coordinator for Health Information Technology on Dec. 30, lays out the technical standards for a “certified” system.)

According to the “meaningful use” regulation, providers who treat Medicare and Medicaid patients would receive incentives in three stages.

They would receive the first set of incentive payments if they meet all 25 benchmarks for “Stage I” of the phased-in implementation in either 2011 or 2012.

They would get further incentives for achieving increasingly rigorous (but not yet defined) benchmarks by the end of 2013 and 2015, after which non-compliant providers would face penalties. Early adopters who achieve compliance at all three stages could garner up to $44,000 in incentives.

Many doctors and other health care providers agree that EHR adoption is a laudable and necessary goal. In fact, they say that CMS has worked hard to produce realistic benchmarks that utilize physician-friendly measures.

However, they also predict that the statutory and regulatory framework will make it both challenging and costly for solo and small-group practices – as well as small community hospitals – to meet the requirements in the proposed time frame.

Tough for small practices

Some of the benchmarks are ambitious, and will be especially difficult for smaller medical practices to meet, experts said.

“It’s the smaller [entities] that will have greatest difficulties,” said Ray Campbell, CEO of the Massachusetts Health Data Consortium.

For example, the regulation calls for all physicians to use e-prescribing 75 percent of the time by 2012.

David Harlow, a Newton-based lawyer and health care consultant, said that this won’t be an easy task, noting that Massachusetts is considered a leader in e-prescribing even though only 10 percent of prescriptions are submitted electronically.

At the same time, other benchmarks seem pointless in light of what many physicians – especially specialists – do on a regular basis, Harlow said.

He referred to a requirement that electronic reminders for preventative care and follow-up be sent to at least 50 percent of all patients age 50 or older.

“Why would, say, an orthopedic surgeon be sending out reminders based on age?” he asked. “That’s really geared toward primary care, yet it’s a measure that’s required in order to get an incentive payment.”

Campbell criticized Congress for putting more funds toward the rewards that occur after doctors achieve meaningful use, while not earmarking enough money to help physicians implement EHR systems in the first place.

Massachusetts Medical Society president Mario Motta, a Salem cardiologist whose own 10-doctor practice has adopted EHR, agreed.

“I’d never go back to the dark ages without [electronic records], but it’s a huge expense,” he said. “We’re talking roughly $30,000 to $50,000 per physician [to start], and then you have [annual] maintenance costs that for higher-level systems – considering that the cheaper systems won’t make the cut for ‘meaningful use’ – can range anywhere from $8,000 to $15,000 per physician.”

Unlike most businesses that invest in infrastructure upgrades, doctors have no ability to pass on their costs, Motta added.

“If you do everything right and somehow don’t meet the benchmarks, you’re stuck with the entire cost,” he said.

Observers wonder if small providers who aren’t prepared to make the financial investment or workflow changes might simply opt out of Medicare and Medicaid or gamble that come 2015, Congress will lack the political will to stand firm on noncompliance penalties.

“I’m assuming [Congress will] stick with [the penalties],” says Campbell. “But if the transition is messy and sticky and there are lots of failures, they’ll have to revisit that policy. And I do think it will be messy and there will be a fair number of failures.”

Meanwhile, the Department of Health and Human Services meaningful use workgroup is recommending that CMS reduce the number of benchmarks required at least for the first year. And other groups are expected to weigh in.

Some requirements not as tough

Despite the extent of the requirements, legal experts say that some of them might not be as tough to implement as it seems at first glance.

For example, the proposed regulation would require providers to have a system in place for electronic drug-drug, drug-allergy and drug-formulary checks by the end of the first stage of implementation, said Szabo.

But physicians aren’t required to actually use the system at any point during Stage I – the system simply needs to be turned on during the provider’s 90-day “meaningful use” testing period. The provider determines when that testing period will be, and during that time he or she must meet all Stage 1 criteria.

Under the regulation, doctors would also be expected to provide health information electronically to at least 80 percent of patients who request it, but Szabo points out that these requests are still highly unusual in the first place.

Meanwhile, though CMS expects providers to use computerized physician order entry (CPOE) for at least 80 percent of all orders during either 2011 or 2012, a provider would only need to demonstrate the capability to do so during his or her testing period, not the entire year.

That means that a doctor who manages to ramp up for, say, just the last three months of the year can still be a big winner, said Szabo.

Getting up to speed

Smaller practices need to get up to speed on how to implement an EHR system.

Harlow warns that a physician practice should not even attempt to roll out an EHR system if the physicians are only in it for the incentive payments. Though an effective system should ultimately start paying for itself through the internal office efficiencies it creates, a $44,000 maximum incentive payment won’t cover the implementation costs.

Additionally, said Campbell, successful implementation is at least as much about changing the way you practice and operate your business as it is about the technology itself.

That’s exactly why it can take a practice up to six months to get used to an EHR system, said Harlow.

“During that time, physicians will work longer hours while seeing the same number of patients,” he said. “They’re learning to interact with the patient and the computer screen simultaneously and that’s not the easiest thing in the world.”

To make the transition smoother, experts suggest working with a health care management consultant, seeking advice from a peer who has already implemented EHR, and/or taking advantage of seminars offered by the MMS IT Committee on such topics as getting started, choosing a vendor and using the system.   MMLR

Questions or comments may be directed to the editor at: reni.gertner@mamedicallaw.com