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August 18, 2015



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Congress Passes Electronic Health Fairness Act

imageThe Senate this month approved a bill to exempt patient encounters in ambulatory surgery centers (ASC) from meaningful use requirements. Specifically, the Electronic Health Fairness Act (S. 1347), which was approved by unanimous consent Wednesday, would amend title XVIII (Medicare) of the Social Security Act to prohibit, for a payment year after 2015, “any patient encounter of an eligible professional occurring at an ambulatory surgical center from being treated as such an encounter in determining whether an eligible professional qualifies as a meaningful electronic health record (EHR) user.”

“The Committee recognizes the importance of the Medicare ‘meaningful use’ incentive program to advance the goal of providers acquiring electronic health records as a tool to provide high quality, more coordinated care,” the legislative report explains. “[But] the Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009 did not include ASC facilities in the Medicare EHR incentive program. Therefore, development of EHR products specifically for the ASC setting has not been a vendor priority, nor has it been included in the certification process [and] providers in ASC facilities should not be disadvantaged in the program.”

The bill was introduced by Senators Johnny Isakson (R-GA) and Michael Bennet (D-CO) in the Senate. The House version of this bill, introduced by Representatives Diane Black (R-TN) and David Scott (D-GA), passed on June 17th, as part of a larger legislative package. AAOS sent a support letter to Rep. Black in March that expressed support for the legislation.

“The AAOS feels strongly that these senseless and costly penalties placed on providers will only further the burdens already incurred by physicians who treat patients in Ambulatory Surgery Centers (ASCs),” wrote AAOS past president Frederick M. Azar, MD. “Requiring physicians to conduct some 50% of their patient encounters in a setting with a certified electronic health record technology (CEHRT) product is proving impossible as there are currently no CEHRTs in any ASC setting.  An ASC is a unique care delivery structure. Penalizing them for not meeting the patient encounter threshold could cause physicians to take patients to the more-expensive hospital setting in order to meet this threshold, thus limiting patient access to care.”

The bill now heads to the president to be signed into law.

Meanwhile, providers and other health IT stakeholders are asking the Centers for Medicare & Medicaid Services (CMS) to finalize its proposed rule adding additional flexibility to meaningful use in 2015 through 2017. The American Hospital Association, Federation of American Hospitals and America’s Essential Hospitals, among others, recently told Burwell that the rules – proposed back in April – “are past due.” The primary changes proposed in the rule would standardize the 2015 reporting period for the EHR incentive-payment program to 90 consecutive days of achieving meaningful-use criteria rather than the full calendar year that was expected starting this year. All participating providers demonstrating meaningful use for the first time in 2016 can use any continuous 90-day reporting period during the year. All returning participants would have a full calendar year reporting period in 2016. Finally, all participants – new and existing – would have a full calendar year reporting period in 2017, except for those attesting for Medicaid for the first time.