The EHR Incentive Program: New Rule for Anesthesiologists

-->August 30, 2012Billing & Compliance Alerts

    The EHR Incentive Program: New Rule for Anesthesiologists
    By Justin Vaughn, M.Div, CPC
    Director of Compliance


    Late last week, CMS released a Final Rule dealing with several significant aspects of the EHR incentive program; and, in so doing, provided an answer to the critical question anesthesia groups around the country have long awaited.  Since the implementation of the incentive program under the HITECH Act in 2009, anesthesiologists have wanted to know if they are exempt from participating in this decidedly complex initiative.

    This is a reasonable inquiry.  After all, the initial language of the Act specified that “anesthesiologists,” in particular, were among those who would normally be considered “hospital-based providers” (HBP), and as such would be excluded from the program.  However, subsequent regulations changed the criteria for determining the definition of HBP.  The term, “anesthesiologists,” was excised and replaced with a numerical formula.  Specifically, in order to achieve the status of HBP, and thus receive exemption from the program, at least 90% of a physician’s case volume would have to be performed in the inpatient and/or ER setting.  The problem with this formulation, of course, is that most anesthesiologists perform more than 10% of their cases in the outpatient hospital and/or ASC setting, and thus would not reach the HBP threshold.  So, the very group that CMS originally intended to exclude from participation has, for the last few years, been under the sword of Damocles—waiting and wondering if their status will ever change.  It has.

    The Final Rule, which addresses Stage 2 of Meaningful Use and the EHR program as a whole, offers anesthesiologists a brief respite.  Rather than excluding anesthesiologists from the program outright, CMS decided to offer an exemption for anesthesiologists—that must be renewed each year.  Highlights of the exemption provision are as follows:

    • If a provider is registered in PECOS (Provider Enrollment, Chain and Ownership System) with a primary specialty of anesthesiology, pathology or radiology by July 1, 2014, he/she meets the exception.
    • Those qualifying for the above exception will be exempt from the 2015 penalty.  (Without such an exemption, the penalty would constitute a 1% downward payment adjustment in the provider’s total annual Medicare reimbursement.)
    • By statute, no provider can receive an exception for more than 5 years.  Thus, without further congressional action, anesthesiologists will eventually be forced to “play ball” by demonstrating meaningful use of a government-approved EHR at the conclusion of this 5-year grace period.

    There are additional provisions in this Final Rule that will be covered in future alerts.  For the time being, however, the overriding message for anesthesiologists across the nation is this:  You have escaped, at least for a few years, the onerous requirements and potential penalties of the EHR program.

    The information presented herein reflects general information that is current as of the date it was first published.  In light of changes that may occur in the health care regulatory and compliance environments, the author’s presentation of this information might become outdated.  Please check with your individual legal and/or compliance advisor(s) prior to taking any significant actions based upon the information and advice presented.