Senate Passes Bill Protecting Ambulatory Center Surgeons From Meaningful Use Penalties

Ken Terry

August 07, 2015

The US Senate on Wednesday unanimously passed a bill that would protect physicians who work in ambulatory surgery centers (ASCs) from being financially penalized by Medicare for not showing meaningful use of electronic health records (EHRs). The Electronic Health Fairness Act of 2015, which was approved by the House on June 17, is now awaiting President Barack Obama's signature.

The measure addresses a blind spot in the Health Information Technology for Economic and Clinical Health Act of 2009. That law requires eligible professionals to use certified EHR technology (CEHRT) in at least 50% of their patient encounters to meet the requirements of meaningful use.

The problem for physicians who work in ASCs is that those facilities do not have the certified EHRs that are required to show meaningful use. The Office of the National Coordinator for Health Information Technology (ONC) has not designed certification standards specifically for EHRs that can be used in ASCs. With all patient encounters in an ASC counting against a doctor's 50% threshold, it is likely that ASC doctors will be subject to penalties for not showing meaningful use.

Now that the EHR incentive program has entered its penalty phase, physicians who don't attest to meaningful use face penalties ranging from 1% to 5% of their Medicare reimbursement between now and 2018. In 2019, the law that repealed the sustainable growth rate Medicare pay formula will fold meaningful use into a new program that will reward or penalize physicians based on their performance.

The Electronic Health Fairness Act exempts patient encounters in ASCs from the requirement that physicians use a certified EHR for 50% of all patient encounters. That exemption will last until 3 years after the Secretary of Health and Human Services (HHS) determines that CEHRT designed for ASCs is available. In addition, the legislation authorizes the US Department of Health and Human Services to certify ASC EHRs. (ONC is part of HHS.)

The ASC Association (ASCA) has developed volunteer certification criteria that are appropriate for ASCs, according to a recent interview that AmkaiSolutions conducted with Heather Ashby, the association's deputy director of advocacy.

"ASC-specific criteria will lead to EHR technologies that provide the most necessary and accurate data for ASCs to provide the best possible care to their patients," Ashby said. "Technologies built to these standards will best meet the needs of this unique setting of care. In addition, an HHS-approved CEHRT will allow ASC-practicing physicians to fully participate in the EHR meaningful use program as well as the new 'Merit-Based Incentive Payment System' recently passed by Congress."

With support from ASCA, Sen. Johnny Isakson (R-GA) and Sen. Michael Bennet (D-CO) introduced the Electronic Health Fairness Act in the Senate. The cosponsors of the House legislation included Rep. Diane Black (R-TN) and Rep. Linda Sanchez (D-CA).

More than 5300 ASCs in the United States perform 23 million surgeries annually, according to ASCA. The specialists whom ASCs most frequently serve are ophthalmologists (30%), orthopedists (15%), gastroenterologists (14%), pain management specialists (10%), plastic surgeons (8%), and urologists (5%). Members of other specialties practice in the remaining 18% of ASCs.

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