david g. schoolcraft ogden murphy wallace, pllc dschoolcraft@omwlaw.com

David G. SchoolcraftOgden Murphy Wallace, PLLC

dschoolcraft@omwlaw.com

Part I – Federal Incentive Payments for Health IT◦ Up to $36.5Billion in federal stimulus funding ◦ Unprecedented opportunity to advance “Health IT”◦ Complex payment methodologies and some open

issues Part II – Significant Changes to HIPAA

◦ Data Breach Notification Rules◦ Business Associate Agreements◦ Penalties & Enforcement◦ Accounting of Disclosures

Part III – Action Plan for 2009

Eligible Hospitals ◦ Medicare

PPS factors: discharges, “Medicare Share” CAH factors: costs w/o depreciation, “Medicare

Share”◦ Medicaid

10% of hospital’s “patient volume” (to be defined) No difference in payment methodology for PPS and

CAH Eligible Physicians (Medicare or Medicaid) HIE Planning and Development Grants EHR Adoption Loan Program

Washington Grace Hospital = 25 beds, Critical Access Hospital◦ 2 Employed Physicians – Medicare ($44,000)

Estimates based on certain factual assumptions.

Subject to revision under final HHS regulations.

Washington Grace Hospital = 80 beds◦ 4 Employed Physicians – Medicare ($44,000)

Estimates based on certain factual assumptions. Subject to revision under final HHS regulations.

Incentives for Adoption and “Meaningful Use” of

“Certified EHR Technology”

▶ Demonstrate to the “satisfaction of the Secretary” use of certified EHR in a meaningful manner

▶ Certified EHR technology must be connected to provide for the electronic exchange of health information to improve the quality of care

▶ Hospitals to submit information on clinical quality and other measures as selected by the Secretary

▶ More stringent measures over time

“Certified EHR technology” is a qualified electronic health record meeting standards to be defined

Office of the National Coordinator for Health Information Technology (“ONC”) to develop certification program

Certification Commission for Healthcare Information Technology (“CCHIT”) may be involved along with the National Institute of Standards and Technology (“NIST”)

December 31, 2009 deadline for initial standards, implementation specs and certification criteria

Fiscal year 2011-2015 (Oct. 2010)◦ Phased Transition Schedule After 2013

HHS will determine how hospitals shall demonstrate meaningful use (attestation, survey, etc.)

Amount($2 MM + $200 (Discharges 1,150th - 23,000th)) * Medicare Share * Transition

Factor

◦ Medicare Share = Medicare portion of inpatient days adjusted upward for charity care.

◦ Transition Factor - Reduction by 25% per year for 4 years

Medicare incentives are paid on a transition schedule.

After FY 2015, if a hospital is not a meaningful EHR user then penalties begin

Meaningful EHR User

FY 2011 FY 2012 FY 2013 FY 2014 FY 2015 FY 2016 FY 2017

FY 2011 100% 75% 50% 25%FY 2012 100% 75% 50% 25%FY 2013 100% 75% 50% 25%FY 2014 75% 50% 25%FY 2015 50% 25%

AfterFY 2015

33.33% 66.66% 100%

Washington Grace Hospital – 80 bedsTotal Discharges 4,500

Medicare Patients 2,500

Medicare Inpatient Days 11,000

Total Inpatient Days 17,000

Total Hospital Charges $ 190,000,000

Total Charity Care $ 2,000,000

Medicare Share 65%

Estimate of Medicare Incentive Payments*2011 2012 2013 2014

$1,811,551 $1,358,663 $905,776 $452,888

Total$4,075,99

0*Estimate based upon existing statute in advance of HHS rule making.

If a meaningful EHR user by 2015, CAH may expense certain EHR costs in one year for cost reporting purposes (non-depreciated basis) and certain costs from prior periods

Calculation uses Medicare Share amount + 20% Equation:

101% * Reasonable Cost of EHR System * (Medicare Share + 20%)

If CAH is not a meaningful user by 2015 or thereafter, percentage reimbursement will be reduced to 100.66% in 2015, 100.33% in 2016 and 100% in 2017

Washington Grace CAH – 25 bedsTotal Discharges 170 Medicare Patients 110Medicare Inpatient Days 260Total Inpatient Days 350Total Hospital Charges $ 8,500,000 Total Charity Care $120,000Annual Cost of EHR System

$350,000

Medicare Share 75% + 20% =

95%(20% increase for

CAH)

Total$1,348,24

2

Estimate of Incentive Payments*2011 2012 2013 2014

$337,060 $337,060 $337,060 $337,060

Assumes costs remain the same over all four years

*Estimate based upon existing statute in advance of HHS rule making.

CAH’s who have not implemented EHR’s by 2015 may be subject to reductions

10% of “Patient Volume” on Medical Assistance◦ To be defined by Secretary of HHS◦ Inpatient vs. outpatient volumes

States allocate the money Year 1 – Demonstrate efforts to adopt,

implement or upgrade EHR system Years 2-6 – Demonstrate “meaningful use”

Washington Grace CAH – 25 bedsTotal Discharges 170Medicaid Patients 30 Medicaid Patient Volume

17%

Avg Rate of Growth 6.73%Medicaid Inpatient Days 35Total Inpatient Days 350Total Hospital Charges $ 8,500,000 Total Charity Care $ 120,000

Medicaid Share 10%

Incentive Payments2011 2012 2013 2014

$183,004 $137,427 $91,742 $45,937

Total$458,109

Physician incentive payments are 75% of Medicare allowed charges◦ Penalties – reduction in physician fee schedule

10% increase in incentives if physician practices in a designated health professional shortage area

Meaningful EHR User

FY 2011 FY 2012 FY 2013 FY 2014 FY 2015 FY 2016 FY 2017 Total

FY 2011 $ 18,000 $ 12,000 $ 8,000 $ 4,000 $ 2,000 $ 44,000 FY 2012 $ 18,000 $ 12,000 $ 8,000 $ 4,000 $ 2,000 $ 44,000 FY 2013 $ 15,000 $ 12,000 $ 8,000 $ 4,000 $ 39,000 FY 2014 $ 12,000 $ 8,000 $ 4,000 $ 24,000

AfterFY 2015

1% 2% 3%

Hospitals may be able to collect incentive payments for certain employed physicians, but note that “hospital-based” physicians are excluded

Excluded Physicians

Pathologists

Anesthesiologists

Emergency Physicians

New Compliance Obligations and

More Regulations to Come

Requires that covered entities notify patients of any unauthorized acquisition, access, use, or disclosure of “unsecured” PHI

Date of discovery – first day breach was known or should have been known

Notice within 60 days of discovery If+500, then notice to media and HHS

Recent HHS Guidance Reference to NIST Publication 800-100 Internal review and risk analysis Data encryption technologies

Currently – Business Associates not directly regulated by HIPAA

Application of HIPAA Security Requirements◦ Administrative Safeguards◦ Physician Safeguards◦ Technical Safeguards◦ Documentation Requirements

Requirement to notify Hospital if there is a breach

Open question regarding mandatory revisions to Business Associate Agreements

Expansion of criminal and civil penalties Tiered penalties tied to violator’s level of

intent Periodic audits by HHS Victims may receive percentage of civil

penalties State Attorney General may bring an action

provided an action by HHS is not pending

Eliminates existing exception limiting accounting for disclosures other than treatment, payment and health care operations

Will require significant operational changes, but may be aided by improved IT systems

Staggered effective dates:

EHR Acquired Effective Date

Before 1/1/2009 1/1/2014

After 1/1/2009 1/1/2011

Prepare estimate of health IT incentive funds available for your facility

Analyze Medicare and Medicaid incentive payments for hospitals (PPS/CAH) and eligible physicians

Monitor HHS, ONC, CCHIT, NIST for development of standards for “certified EHRs” and “meaningful use”

Develop data breach prevention and response plan Assess data security in light of new federal standards Implement additional data security measures deemed

necessary and appropriate following risk analysis Develop reporting and communications plan in

conjunction with IT service providers: ◦ Internal reporting and incident review ◦ Required external communications (patients, media,

government)◦ Methods to address follow up inquiries from patients and/or

media

Careful review of information technology transactions– from due diligence during system selection through contracting

Ensure that all information technology transactions are HITECH-Ready◦ Vendor/service provider commitments regarding data

security and accounting of disclosure requirements◦ Updated Business Associate Agreement◦ Functionality necessary to obtain or maintain “certified

EHR” status and to facilitate “meaningful use”

David G. Schoolcraftdschoolcraft@omwlaw.com

206.447.7211