Déjà Vu and the 50% Rule: We Have All Been Here Before
The public comment period for the meaningful use stage 2 proposal closed on May 7. With the assistance of our parent company we were able to submit a comment on behalf of practicing nephrologists which you can read here. Reading the 455 page proposed rule and later contributing to the comment referenced above, I recalled a song from my youth.
And I feel like I’ve been here before
I have previously written about the so-called 50% rule and its impact on nephrologists. In a classic case of unintended consequences, many nephrologists find themselves with a tough choice: either use their certified EHR within the dialysis facility or do not participate in the program. Last August I had the pleasure of representing the RPA at a meeting in Washington, D.C. with a number of renal stakeholders from around the country. The meeting was with ONC’s medical director and CMS. We had a number of items on the agenda including the 50% rule. We were able to articulate the problem we face in the dialysis facility as a result of the eligibility rule and we proposed a simple solution. Instead of judging eligibility based on where half of our encounters took place during the reporting period, we suggested basing eligibility on unique patient encounters. In other words, if at least half of a physician’s unique patient encounters took place in a venue equipped with a certified EHR, the physician would be eligible to participate and would only report on the patients in those venues. This would substantially ease the reporting burden for the majority of nephrologists as well as for many other physicians.
It makes me wonder what’s going on
There were many nods of agreement around the table and I left that meeting confident our message was well understood and well received. So when the proposed rule arrived a couple of months ago, with the anticipation of a child on Christmas morning, I raced through the rule in search of the fruits of our labor. I did not get far before I realized there was coal in my stocking. Quoting from the proposed rule:
“We propose for Stage 2 to continue our policy that to be a meaningful EHR user, an EP must have 50 percent or more of his or her outpatient encounters during the EHR reporting period at a practice/location or practices/locations equipped with Certified EHR Technology. An EP who does not conduct at least 50 percent of their patient encounters in any one practice/location would have to meet the 50 percent threshold through a combination of practices/locations equipped with Certified EHR Technology.”
I have added the emphasis above as later in the proposed rule they clarify the two points above. Regarding patient encounters:
“We define patient encounter as any encounter where a medical treatment is provided and/or evaluation and management services are provided. This includes both individually billed events and events that are globally billed, but are separate encounters under our definition.”
Later they clarify the phrase equipped with certified EHR technology:
“We define a practice/location as equipped with Certified EHR Technology if the record of the patient encounter that occurs at that practice/location is created and maintained in Certified EHR Technology. This can be accomplished in three ways: Certified EHR Technology could be permanently installed at the practice/location, the EP could bring Certified EHR Technology to the practice/location on a portable computing device, or the EP could access Certified EHR Technology remotely using computing devices at the practice/location.”
We have all been here before
What does this mean for the practicing nephrologist? Bottom line, nothing significant has changed. Unless ONC revisits this issue as they review the public comments and craft the final rule, your approach to stage 2 will again require you to consider whether or not half of your encounters outside of the hospital occur in a location equipped with a certified EHR. If so, you report on those patients in those locations; if not, you are not eligible to participate in the program.
There is still a small chance ONC will modify their stance. In addition to our comment, the RPA separately weighed in on the same issue in the comment they submitted. The window of opportunity has not closed completely. Most expect to see the final rule for stage 2 in August or September of this year. I hope we are singing a different tune when the final rule arrives.