On February 27, the House Ways and Means Committee passed the Electronic Health Fairness Act (HR 887), which would exempt ambulatory surgical centers (ASCs) from the EHR Incentive Program.

Ambulatory surgical centers are health care facilities focused on providing same-day surgical care, including diagnostic and preventive procedures.  ASCs do not provide primary health care services.  Instead, they treat patients who have already seen a health care provider and have selected surgery as the appropriate treatment for their condition.  Because ASCs are specialized and function on a smaller scale, they generally provide services at a lower price than a full-service hospital.

Under the EHR Incentive Program, hospitals and eligible professionals that demonstrate the meaningful use of electronic health records qualify for Medicaid and Medicare incentive payments.  They may also be penalized for failing to meaningfully use EHR.  Eligible professionals must demonstrate that 50% or more of their outpatient encounters occur at locations equipped with EHR technology in order to be considered a meaningful user.

The Electronic Health Fairness Act would exempt “any patient encounter . . . occurring at an ambulatory surgical center from being treated as such an encounter” when determining whether the professional qualifies for EHR incentive payments.  The Committee noted that this bill would benefit eligible physicians who have a significant number of patient encounters at ASCs.  These physicians are currently at a disadvantage when attempting to meet the 50% meaningful use requirements because EHR technology is not currently certified for ASCs.  The bill’s exemption would sunset three years after EHR technology is certified specifically for use in ASCs.

The bill will also benefit the ASCs and may improve beneficiary access to ASCs, because physicians will be able to bring more cases to surgical centers without a fear of incurring Medicare payment penalties.  According to the Ambulatory Surgery Center Association, this bill would remove a major disincentive “to provid[ing] care in an ASC when appropriate.”

The bill has been sent to the House for a full vote.

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Photo of Anna D. Kraus Anna D. Kraus

Anna Durand Kraus advises on issues relating to the complex array of laws governing the health care industry. Her background as Deputy General Counsel to the U.S. Department of Health and Human Services (“HHS”) gives her broad experience with, and valuable insight into…

Anna Durand Kraus advises on issues relating to the complex array of laws governing the health care industry. Her background as Deputy General Counsel to the U.S. Department of Health and Human Services (“HHS”) gives her broad experience with, and valuable insight into, the programs and issues within the purview of HHS, including Medicare, Medicaid, fraud and abuse, and HIPAA privacy and security. Anna is co-chair of the firm’s Health Care Industry practice group.

Anna regularly advises clients on Medicare reimbursement matters, particularly those arising under Part B and the Part D prescription drug benefit. She also has extensive experience with the Medicaid Drug Rebate program. She assists numerous pharmaceutical and device manufacturers, health care providers, pharmacy benefit managers, and other health care industry stakeholders to navigate the challenges and opportunities presented by the Affordable Care Act.

Anna is a trusted adviser on health information privacy, security and breach notification issues, including those arising under the Health Insurance Portability and Accountability Act (“HIPAA”) and the Health Information Technology for Economic and Clinical Health (“HITECH”) Act. Her background in this area dates back to the issuance of the original HIPAA privacy regulations.

Anna’s clients depend on her to guide them through compliance with the Anti-Kickback statute, the Stark regulations, and other laws preventing fraud and abuse in the health care industry. Her deep knowledge of these laws has made her an important component of the firm’s representation of pharmaceutical companies and health care organizations under federal investigation or facing allegations under the False Claims Act. In addition, clients contemplating acquisitions in the health care sector rely on her to guide due diligence efforts.

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