“They Said It, But They Didn’t Mean It”: MIPPA, Meaningful Use and Supervision

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For my last session today, I decided to attend a presentation on “legal issues that lots of people ask about lately” given by the inimitable Ken Davis Jr, JD, partner with Katten Muchin Rosenman LLP. Davis dove right in with the topics of Medicare payment withholding and MIPPA-mandated accreditation, both kicking in at the end of next year. As of December 31st, 2011 all Medicare payments will come with 3% withholds—with notable exceptions, including public assistance payments made on basis of need or income or payments to tax-exempt organizations. Yet another competitive advantage for most hospitals. Also coming up fast is the MIPPA requirement for accreditation, which kicks in January 1, 2012. Because hospitals are not reimbursed under the MPFS, this requirement does not apply to them either. CMS has approved three bodies for accreditation, the ACR, the IAC and the Joint Commission, and Davis recommends drilling into their differences before making a decision. (We have some articles that might help here and here.) Davis did note that in his opinion, the ACR’s process “is probably most favorable to the people in this room”—but no matter which accrediting body you select, start early, expect backlogs, and know that you’re going to have to stay accredited, so hang on to that paperwork. Moving on to the EHR incentive program, Davis noted several things. First of all, physicians who are hospital-based are not eligible for the program, and that determination is made for each individual doctor on an annual basis. “I would encourage you to evaluate whether you’re a hospital-based physician,” Davis said. “Believe me, some of your competing specialists out there are all over this right now.” Eligible physicians can only participate in one program, Medicare or Medicaid, and Medicaid’s maximum incentive payments are higher—$10,000 a year for Medicaid versus $8,400 for Medicare. In order to receive the payments, the eligible physician must be a meaningful user of certified EHR, beginning with stage 1 in 2011. (We’ve got a handy-dandy article on this as well.) By the way, starting in 2015, eligible physicians not demonstrating meaningful use of EHR will be hit with a payment reduction. Davis said it’s questionable whether a typical PACS or typical RIS would qualify as an EHR. “So what should you be doing?” he asked. “Because there are penalties associated with not participating, you want to regularly review whether your physicians are hospital-based. You need to ascertain to what extent your group might be eligible for the incentives. And determine whether your PACS/RIS/billing system is going to be certified as EHR.” Continuing to supervision of hospital outpatient diagnostic services, Davis observed that CMS has clarified its rule recently. The old rule essentially said that services could be considered supervised as long as they took place in a hospital. The new rule’s goal is to conform the supervision requirements for hospitals with those that apply to physician groups and IDTFs. All outpatient diagnostic services are subject to general, direct and personal supervision; direct supervision means the physician must be present on the same campus and immediately available to furnish assistance and direction throughout the performance of the procedure. For an off-campus department of the hospital, the supervising physician must be present within that location. “In neither instance does this mean the physician must be present in the room,” Davis noted, “but immediate availability requires the immediate physical presence on the physician.” CMS has yet to define the term “immediate,” but has said that the physician should not be performing another service that he or she can’t interrupt—ruling out the use of, for example, an ER doc. Then Davis moved on to the more difficult requirements, which deal with what kind of physician can supervise. The supervisory physician must have the ability to perform the tests, and must have the ability to take over the performance of the test as necessary. “It raises the question, can only radiologists provide supervision?” Davis said. “I believe that although supervision of diagnostic services still can only be provided by physicians, I don’t believe that only radiologists are qualified. Everyone is coming to the conclusion that that’s not really what they meant. We feel that way because CMS could have used the IDTF regulatory language, which says the physician has to be ‘proficient in the performance and interpretation’ of the test.” He concluded, “Hospitals need to review the clinical qualifications of whatever physicians will be providing the supervision and put them through a ‘quasi-credentialing’ process. And whatever you do, don’t forget about the other physical presence requirements described above.”