Seeking Meaning in Meaningful Use
The Medicare and Medicaid Electronic Health Record (EHR) Incentive Programs provide for incentive payments to eligible professional who are meaningful users of certified EHR technology—and future downward adjustments for eligible professionals who fail to demonstrate meaningful use. The Medicare version of the program is generally applicable to primary-care physicians, causing some confusion among specialists (such as radiologists). Initially, confusion existed as to whether diagnostic radiologists even qualified as eligible professionals (generally, physicians who are not hospital based). Hospital-based practice was subsequently defined to specify that 90% or more of the physician’s services are furnished in a hospital inpatient or emergency-department setting. Although radiologists typically provide imaging services for both inpatients and outpatients, the overwhelming majority do not come close to providing 90% of their services in inpatient or emergency-department settings. Many radiologists, therefore, qualify as eligible professionals. Another challenge facing radiologists is that of convincing hospitals that no EHR ownership or investment is required. Some hospitals have suggested that because they (not radiologists) have made the investment in the certified EHR, the radiologists may not use their systems to demonstrate meaningful use and obtain incentive payments. At first blush, this position seems to make sense. After all, isn’t the incentive payment designed to promote investment in certified EHRs? The underlying reason for investment in EHRs is so that they can be used, ultimately resulting in substantially improved care. In a National Provider Call (transcribed at www.cms.gov/ehrincentiveprograms/65_CMS_EHR_Listserv.asp) on September 9, 2011, CMS confirmed that there is no purchase requirement. CMS noted that many eligible professionals demonstrate meaningful use of the certified EHRs of their employers (or through user licenses or other agreements). CMS acknowledged the special challenges facing radiologists and anesthesiologists, noting that as long as the physician is not hospital based (as defined in the rule), he or she may demonstrate meaningful use of a hospital’s ambulatory (but not inpatient) EHR. CMS expects to address some of these special challenges in the stage 2 rule; the proposed rule should be published in February 2012. Chasing the Wind Clearly, diagnostic radiologists who are not hospital based are eligible professionals and need not purchase or invest in certified EHRs. How can such radiologists actually demonstrate meaningful use? Not only is this the most daunting challenge, but the failure to clear this hurdle could cause eligible professionals to be penalized by Medicare payment reductions. Unfortunately for radiologists, many of the measures associated with demonstrating meaningful use are more applicable to primary-care physicians; some of the measures are meaningless to specialists. Although exclusions are available for some of the measures, it is unclear whether radiologists will be able to demonstrate meaningful use. Further, it appears that certified EHR technology must still possess the ability to meet these meaningless meaningful-use measures. In many instances, radiologists practicing in hospital settings are given access only to inpatient EHR technology, which generally has the functionality necessary for radiologists’ purposes. Eligible professionals, however, must use ambulatory EHR technology in order to demonstrate meaningful use. This appears to be because eligible hospitals’ incentive payments are based on total inpatient services (which is why hospital-based physicians are ineligible to participate in the incentive program). It would constitute double payment if both hospitals and hospital-based physicians were paid incentives for use of the same EHR. Therefore, using inpatient technology does not appear to be an option for eligible professionals; they must demonstrate meaningful use of ambulatory EHR technology. Even if a given hospital possesses a certified ambulatory EHR, that EHR may not provide the functionality necessary and pertinent to the practice of radiology. A hospital might see little (if any) incentive to finance an overhaul of its ambulatory EHR in order to provide radiologists with the opportunity to demonstrate meaningful use. To Use or Not To Use Our experience has been that many hospitals might be unwilling to offer radiologists access to the ambulatory EHR. There appear to be some hospitals willing to modify their ambulatory EHRs to allow radiologists access, but we anticipate that those hospitals might also expect shared investment in such an overhaul. Whether a specialty practitioner ultimately participates in the incentive program might come down to simple arithmetic. Eligible professionals who find the investment prohibitive might simply take the hit. After all, the program is voluntary. The maximum possible incentive payment for which an eligible professional can qualify is, over a five-year period, $44,000. Downward payment adjustments begin in 2015 and continue indefinitely. Certain aspects of the program have yet to be implemented by regulation. Diagnostic radiologists and other physician specialists would be prudent to keep abreast of issues relating to the program, and they should consider helping to shape policy by participating in the rulemaking process. Thomas W. Greeson, JD, is a partner in Reed Smith LLP, Falls Church, Virginia. Vicky G. Gormanly, JD, is a partner in the firm.