The HITECH Act and eligible professionals: FAQs for psychologists

Answers to several questions posed by members about what pending House legislation related to the Health Information Technology and Clinical Health (HITECH) Act could mean for psychologists

By Legal & Regulatory Affairs staff

July 30, 2012—In the July 16 issue of PracticeUpdate, we informed you of pending legislation (HR 6043) that would include psychologists as eligible professionals (EPs) and qualify them for incentive payments offered by the Centers for Medicare and Medicare Services (CMS) for the "meaningful use" of electronic health records (EHRs). This legislation builds upon the Health Information Technology and Clinical Health Act (HITECH) of 2009 which called for the adoption of health information technology (HIT) throughout the U.S. health care system. This article addresses related questions.

Background

As the federal government moves toward mandating the use of EHRs as the primary way that patients’ records are stored and shared, practitioners in the behavioral health community continue to voice concerns over their patients’ privacy. The American Psychological Association Practice Organization (APAPO) and other organizations representing the interests of behavioral health have been a part of the national conversation regarding these concerns and have continually insisted that privacy and security standards inherent within the Health Insurance Portability and Accountability Act (HIPAA) remain a core component of HIT implementation.

APAPO has been advocating for these standards for the past several years in an effort to ensure that the HITECH Act  incorporates the protections that our profession has identified as fundamental to ethical clinical practice and the utility of HIPAA.

Thus, the HITECH Act contains provisions to ensure the privacy and security of electronic records as HIT policy develops, including: 

  • Incorporating HIPAA Privacy and Security Rule standards, where possible, including standards regarding the protection of psychotherapy notes and other sensitive patient information 

  • Requiring the Department of Health and Human Services to study expanding the HIPAA requirement providing additional privacy for  psychotherapy notes to include mental health testing data 

  • Continuing to preserve and apply stronger state privacy laws and as well as the application of state consent provisions regarding release of information 

  • Implementing a process to explore segmenting particularly sensitive patient records (such as mental health records). This process could provide additional privacy and security for mental health records with respect to user accessibility 

  • Protecting the well-established psychotherapist-patient privilege currently recognized under federal and state law

The purpose of the following Q&A is to answer several questions that we have received from our members in light of HR 6043 about HITECH provisions related to eligible professionals.

What are the Medicare and Medicaid incentive payments?

CMS is offering an opportunity for Eligible Professionals (EPs) to apply for and receive funds for the meaningful use of EHRs. Medicare EPs who successfully demonstrate meaningful use may be eligible to receive Medicare HER incentive payments of up to $44,000. Medicaid EPs may qualify to receive payments of up to $63,750 over six years. EPs would need to choose to participate in either the Medicare or Medicaid program.

What are the potential consequences for EPs who do not adopt EHRs?

Medicare has indicated that penalties will apply to EPs who do not demonstrate that they are meaningful users of certified EHR technology by 2015. This rate adjustment constitutes a 1 percent reduction in Medicare reimbursement in 2015, 2 percent in 2016, and 3 percent in 2017 and for subsequent years. Currently, there are no rate reductions proposed for EPs under Medicaid.

Who is an eligible professional (EP)?

Currently, an eligible provider is defined differently under Medicare and Medicaid. The Medicare EHR Incentive Program includes: 

  • Doctor of medicine or osteopathy 

  • Doctor of dental surgery or dental medicine 

  • Doctor of podiatry 

  • Doctor of optometry 

  • Chiropractor

The Medicaid eligible professionals are: 

  • Physicians (primarily doctors of medicine and doctors of osteopathy) 

  • Nurse practitioner 

  • Certified nurse-midwife 

  • Dentist 

  • Some Physician assistants

In addition to being an EP, the professional must also meet requirements set out by Medicare and Medicaid. In order to qualify for incentive payments:

Medicare

Use certified EHR technology. To receive incentive payments, the EHR technology that is being used or considered for purchase has to be certified by the Office of the National Coordinator for Health Information Technology. CMS provides more information on Certified EHR technology online.

Be a Meaningful User. Eligible providers have to successfully demonstrate “meaningful use” for a consecutive 90-day period in the first year of participation (and for a full year in each subsequent year) to receive EHR incentive payments.

Medicaid

Attest to Adopting, Implementing or Upgrading or demonstrate meaningful use of a certified EHR in the first year of participation in the program.

  • “Adopted” means having acquired, purchased or secured an EHR

  • “Implemented” means installed or commenced utilization which includes staffing, maintenance and training of staff

  • “Upgraded” means expanded the available functionality. Includes upgrading from an existing system to one that is certified.

What is a “meaningful user”?

To be a meaningful user of EHRs, EPs must implement certified technologies/procedures to electronically share with other entities certain patient information, such as demographics and smoking status. They must also record and be able to electronically share information that relates to certain clinical quality measures identified by CMS, such as smoking cessation, hypertension and weight screening.

Even though health care professionals may already use practice management software to house patient records, a true EHR is interoperable and contains modules that can communicate with other software platforms being used by providers nationwide. Additional information on meaningful use and FAQs is available on the CMS website.

What are APA and APAPO doing?

APA and APAPO are working to make any transitions easier for our members. APA is a member of the Behavioral Health Information Technology Coalition – an advocacy group of mental health associations.

APAPO is advocating on behalf of members to allow psychologists to be identified as eligible professionals and therefore gain access to the incentive payments currently offered.

Additionally, APA and APAPO staff are exploring various electronic health records products that are currently available with the plan to create resources that will help psychologists evaluate products in terms of features, cost per user, learning curve and other variables. Of course, a major issue that will continue to be addressed is the privacy and security concerns of mental health professionals and consumers.

What are some resources to learn more?