March 12, 2010 - Advocacy Corner

EP Eligibility for HITECH Incentives Approved by Senate. In legislation passed earlier this week, physicians who practice in hospital-owned outpatient centers and clinics would qualify for information technology incentive payments. As interpreted by the CMS Proposed Rule published in January, a hospital-based physician, referred to as an ‘eligible professional,’ such as a pathologist, anesthesiologist or emergency physician, who furnishes substantially all of such services in a hospital setting" is not eligible for subsidies under the HITECH act if they furnish "substantially all of such services in a hospital setting (whether inpatient or outpatient) and through the use of the facilities and equipment, including qualified electronic health records, of the hospital.” The legislation would reverse this rule. CHIME as well as many other organizations in their public comments have urged CMS to reverse the prohibition on EPs.

In addition to the EP provision, the $140 billion Senate jobs bill, the “American Workers, State, and Business Relief Act of 2010 (H.R. 4213), provides tax incentives to encourage job creation, extends the COBRA subsidy through the end of 2010, delays a 21 percent Medicare payment cut for physicians until Sept. 30 and extends several rural health programs through 2010.

The House approved its own $154 billion jobs bill in December 2009. It is not clear whether or not a conference committee is needed to resolve differences between the two bills, a process that could delay final approval. Given that the bill passed with bi-partisan support in the Senate and it provides important provisions to encourage job growth, its chances of final approval are high.

Parliamentary Tactics Important to Reform Strategy. Democrats are currently exploring how best to use the budget reconciliation process (see Advocacy Corner Feb. 5) to pass health reform. Legislation proposed by the President several weeks ago closely resembles the bill passed by the Senate on Christmas Eve. With no public option, a lower price tag and less restrictive abortion language, the more conservative Senate bill was deemed more politically viable than the liberal House version. The Democrat’s current strategy includes a House vote on the Senate bill, perhaps Friday or next Saturday.

Following House passage, which is still not a certainty, the House will take up a package of fixes (the corrections bill) to the legislation. That measure must then go to the Senate where it is expected to face Republican parliamentary challenges. As backdrop to this scenario, President Obama has delayed his departure for Asia to be available for meetings with wavering Democrats. Should the process drag on beyond his rescheduled March 21 departure date, there are concerns the process will bog down and momentum lost.

On the Senate side, Democratic leaders are making plans to counter GOP strategies to block health reform legislation. Majority Leader Reid has scheduled a meeting with freshman and sophomore Democrats to encourage them to take a more aggressive posture in standing up for health reform against Republican resistence. Senate Rules and Administration Chair Charles Schumer (D-NY) is holding hearings on Senate filibuster rules, which affect not only health reform legislation but much of Senate business.

HIPAA Rules Delay Affect Enforcement. As called for under the HITECH Act, certain new privacy and security requirements became effective on February 17. The HHS Office of Civil Rights (OCR), however, has failed to issue new rules for covered entities and business associates.

Without rules, it is questionable if OCR is able to enforce the new requirements. Meanwhile, OCR is seeking contractors to develop education programs to train state attorneys general on how to prosecute HIPAA violations. In some recent public speeches, OCR officials have implied that enforcement will be delayed pending the new rules. Without clear guidance, covered entities and business associates are probably best advised to make a good faith effort at compliance.