Bill Would Exempt Retirement-Age Physicians From EHR Penalty

April 03, 2013

Physicians near retirement wouldn't suffer a Medicare pay cut for failing to adopt an electronic health record (EHRs) system, and soloists would get a 3-year hiatus from this penalty under a bill introduced last month by Rep. Diane Black (R-TN).

The measure, which Black had introduced in the previous session of Congress, also would give specialists some breaks in earning bonuses and avoiding penalties in the incentive program, designed to promote "meaningful use" of EHRs for the sake of improved patient care and lower costs.

The Centers for Medicare & Medicaid Services (CMS) has paid bonuses under Medicare and Medicaid since 2011 to physicians who meet strictly defined measures of EHR use when it comes to prescribing, drug interaction alerts, medication lists, and the like. In 2015, the incentive program enters its penalty phase. That year, physicians who fall short of meaningful use standards in a prior reporting period will experience a 1% Medicare pay cut. There are no Medicaid penalties in the incentive program.

CMS has already created several hardship exemptions from its EHR penalty, and retirement age would become one more if Black's bill becomes law. A physician would be eligible for the exemption if he or she is at least 62 years old — the earliest that a person can receive Social Security benefits — by the end of 2015, or will turn 62 by the end of 2020.

The American Medical Association and 98 other medical societies in May 2012 advocated this escape hatch in a letter to CMS about the agency's second stage of meaningful-use requirements. They wanted a retirement-age exemption not only from EHR penalties, but also from penalties in the federal programs for electronic prescribing and quality-of-care reporting. "It would be economically burdensome for physicians who intend to retire in the next several years to install and use an e-prescribing or EHR system," the societies wrote.

In its final regulations defining stage-2 meaningful use, CMS rejected the notion of a retirement-age exemption from the EHR penalty. It noted that plenty of older physicians were earning bonuses and that a clinician's age does not represent "a significant hardship."

National Registries Substitute for EHRs

Black's legislation would extend additional leniencies to physicians attempting to cope with the federal incentive program for EHRs.

  • The measure would create a hardship exemption from the penalty for solo practitioners in 2015, 2016, and 2017. Organized medicine has contended that buying and deploying an EHR is especially challenging for soloists and very small medical groups, given their limited resources.

  • Physicians who experience a pay cut in 2015 and beyond because they previously flunked the incentive program could recover the money if they achieved EHR meaningful use later that calendar year.

  • Physicians could qualify for a bonus if they simply use a national registry system that collects clinical data for the purpose of improving patient safety or measuring quality improvement. Such a registry must be endorsed or administered by a national specialty society and deemed qualified by the secretary of the Department of Health and Human Services (HHS).

  • The bill would make it easier for certain specialties to qualify for a bonus and avoid the penalty. Anesthesiologists and other specialists who do not normally conduct office visits would not need to provide patients with visit summaries or electronic copies of health information such as problem lists, medication lists, and diagnostic test results. Furthermore, anesthesiologists and other specialists not given to prescribe drugs in office settings would not need to use EHR technology that comes with drug-interaction alerts until it is available in the operating room and other places where anesthesia is administered.

These and other reforms in Black's legislation have received kudos from a wide array of medical societies, including the American College of Surgeons, the American Congress of Obstetricians and Gynecologists, and the American Osteopathic Association. In a recent letter to Black, these societies and 17 other organizations wrote that the legislation would ensure that "small practices are better prepared to adopt EHRs."

The bill's 4 cosponsors, all Republicans, include Rep. Andrew Harris, MD (R-MD), an anesthesiologist. Both Dr. Harris and Black, a registered nurse, belong to the GOP Doctors Caucus in the House.

Exempting Pathologists Too?

Two other House members, Rep. Tom Price, MD (R-GA) and Rep. Ron Kind (D-WI), joined the movement to overhaul the EHR incentive program last month when they introduced a bill that would exempt pathologists from the penalty.

Their bill explains that meaningful-use requirements are geared to physicians in office-based practices, not pathologists working in laboratories where patients do not set foot. Furthermore, even though pathologists are highly computerized, they normally would not rely on an HHS-certified EHR to store patient information.

"This lack of alignment between regulation and pathology practice," the bill stated, "makes it nearly impossible for pathologists to satisfy meaningful use standards, putting them at risk for payment penalties under Medicare."

Pathologists also would be excluded from receiving EHR incentive payments under the bill.