A Closer Reading of

‘‘American Recovery and Reinvestment Act of 2009’’

By Ira Morganstern, M.D.

 

Incentive payments begin in 2011.

 

‘‘(E) PAYMENT YEAR DEFINED.—

 ‘‘(i) IN GENERAL.—For purposes of this subsection,

the term ‘payment year’ means a year beginning with

2011.

 

 

It would appear that in addition to the other incentives, the professional (or employer or facility) will receive an additional amount of money equal to 75% of the allowed Medicare charges for the payment year.  Therefore, the more billed to Medicare, the higher the incentives.

 

(a) INCENTIVE PAYMENTS.—Section 1848 of the Social Security

(42 U.S.C. 1395w–4) is amended by adding at the end the

wing new subsection:

‘‘(o) INCENTIVES FOR ADOPTION AND MEANINGFUL USE OF CER-

ED EHR TECHNOLOGY.— INCENTIVE PAYMENTS.—

‘‘(1) I

‘‘(A) IN GENERAL.—

‘‘(i) IN GENERAL.—Subject to the succeeding sub-

paragraphs of this paragraph, with respect to covered

professional services furnished by an eligible profes-

sional during a payment year (as defined in subpara-

graph (E)), if the eligible professional is a meaningful

EHR user (as determined under paragraph (2)) for

the EHR reporting period with respect to such year,

in addition to the amount otherwise paid under this

part, there also shall be paid to the eligible professional

(or to an employer or facility in the cases described

in clause (A) of section 1842(b)(6)), from the Federal

Supplementary Medical Insurance Trust Fund estab-

lished under section 1841 an amount equal to 75 per-

cent of the Secretary’s estimate (based on claims sub-

mitted not later than 2 months after the end of the

payment year) of the allowed charges under this part

for all such covered professional services furnished by

the eligible professional during such year.

 

Incentives stop after 2016

 

‘‘(ii) NO INCENTIVE PAYMENTS WITH RESPECT TO

YEARS AFTER 2016.—No incentive payments may be made under this subsection with respect to a year after 2016.

 

Incentives cannot start after 20014

 

‘‘(v) NO INCENTIVE PAYMENT IF FIRST ADOPTING AFTER 2014.—

If the first payment year for an eligible

professional is after 2014 then the applicable amount

specified in this subparagraph for such professional

for such year and any subsequent year shall be $0.

 

 

 

Regarding the amount of the incentive, notice below that there is a bonus for starting in 2011 or 2012. If one of those years are the first payment years, then the payment is $18,000 instead of $15,000.  Apparently there is a desire to incentivize early adopters of EHR. 

 

 

 Notice also, above, that incentives cannot start after 2014. So, the only allowed start years are 11, 12, 13, and 14 and there are bonuses for 11 and 12.

 

Also, please note that if the earliest one can receive an incentive is 2010 and the incentive lasts five years and there are no payments after 2016, then in order to receive the complete incentive the first payment year can be no later than 2012. Those starting their incentives in 13 or 14 will not get the full amount!

 

 

MOUNT.—Subject to clauses (iii) through (v),

‘‘(ii) A

the applicable amount specified in this subparagraph

for an eligible professional is as follows:

‘‘(I) For the first payment year for such profes-

sional, $15,000 (or, if the first payment year for

such eligible professional is 2011 or 2012, $18,000).

‘‘(II) For the second payment year for such

professional, $12,000.

‘‘(III) For the third payment year for such

professional, $8,000.

‘‘(IV) For the fourth payment year for such

professional, $4,000.

‘‘(V) For the fifth payment year for such profes-

sional, $2,000.

‘‘(VI) For any succeeding payment year for

such professional, $0.

 

 

What does the following “phase down” paragraph mean?  Does it mean that if you start payment after 2013 you start payments at $12,000 and end payments in 2016?  I think so. Notice that “after 2013” means 2014 because there are no payments if you start “after 2014”.

 

 

‘‘(iii) PHASE DOWN FOR ELIGIBLE PROFESSIONALS

FIRST ADOPTING HER AFTER 2013.—If the first payment

year for an eligible professional is after 2013, then

the amount specified in this subparagraph for a pay-

ment year for such professional is the same as the

amount specified in clause (ii) for such payment year

for an eligible professional whose first payment year

is 2013.

 

 

 

No incentives to clinicians who provide their service in a hospital. I guess that is because the hospital is getting its own incentive.

 

 

‘‘(C) NON-APPLICATION TO HOSPITAL-BASED ELIGIBLE

PROFESSIONALS.—

 

‘‘(i) IN GENERAL.—No incentive payment may be

made under this paragraph in the case of a hospital-

based eligible professional. ‘‘(ii) HOSPITAL-BASEDELIGIBLEPROFESSIONAL.—For

purposes of clause (i), the term ‘hospital-based eligible

professional’ means, with respect to covered profes-

sional services furnished by an eligible professional

during the EHR reporting period for a payment year,

an eligible professional, such as a pathologist, anesthe-

siologist, or emergency physician, who furnishes

substantially all of such services in a hospital setting

(whether inpatient or outpatient) and through the use

of the facilities and equipment, including qualified elec-

tronic health records, of the hospital. The determina-

tion of whether an eligible professional is a hospital-

based eligible professional shall be made on the basis

of the site of service (as defined by the Secretary)

and without regard to any employment or billing

arrangement between the eligible professional and any

other provider.

All the above is the carrot. Here is the stick. After 2014 non users of EHR will have their Medicare payments reduce by 1 or 2 or possibly as much as 5%.

 

 

‘‘(7) INCENTIVESFORMEANINGFULUSEOFCERTIFIEDEHR

TECHNOLOGY.—

DJUSTMENT.—

‘‘(A) A

‘‘(i) INGENERAL.—Subject to subparagraphs (B)

and (D), with respect to covered professional services

furnished by an eligible professional during 2015 or

any subsequent payment year, if the eligible profes-

sional is not a meaningful EHR user (as determined

under subsection (o)(2)) for an EHR reporting period

for the year, the fee schedule amount for such services

furnished by such professional during the year

(including the fee schedule amount for purposes of

determining a payment based on such amount) shall

be equal to the applicable percent of the fee schedule

amount that would otherwise apply to such services

under this subsection (determined after application of

paragraph (3) but without regard to this paragraph).

PPLICABLEPERCENT.—Subject to clause (iii),

‘‘(ii) A

for purposes of clause (i), the term ‘applicable percent’

means—

‘‘(I) for 2015, 99 percent (or, in the case of

an eligible professional who was subject to the

application of the payment adjustment under sec-

tion 1848(a)(5) for 2014, 98 percent);

‘‘(II) for 2016, 98 percent; and

‘‘(III) for 2017 and each subsequent year, 97

percent.

‘‘(iii) AUTHORITY TO DECREASE APPLICABLE

PERCENTAGEFOR 2018ANDSUBSEQUENTYEARS.—For

2018 and each subsequent year, if the Secretary finds….. 95

percent.