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Mass HIway likely to see changes in the near future

William M. Mandell - Thursday, December 01, 2016

By Karen Rabinovici

The state-sponsored Health Information Exchange, known as the Mass HIway, was launched in October 2012, offering doctors’ offices, hospitals, laboratories, pharmacies, skilled nursing facilities, and other healthcare organizations a method by which to securely exchange information electronically with each other.  The aim of the Mass Hiway was to improve care coordination and delivery, avoid readmissions and medical errors, reduce administrative costs and duplicative testing, enhance communication among providers, increase patient engagement, and improve public health reporting and analytics.  One of the Mass HIway’s main functions is secure direct messaging between participating users, and the Mass HIway plans on soon offering “Event Notification Services,” which will allow for the transmission of notifications to a patient’s health care providers when the patient is admitted to any participating hospital in the state.  All providers, regardless of affiliation, location, or differences in technology, may use the Mass HIway.

The Mass HIway is now likely looking at some changes in the near future.  On Friday November 4, 2016 the Executive Office of Health and Information Services released proposed regulations specific to the requirement for all providers to implement a fully interoperable (meaning, having the ability to send and receive HIway direct messages) electronic health record that connects to the Mass HIway, and the establishment of a mechanism that allows patients to opt-in or opt-out of the MassHIway.  The proposed regulations require specific providers (acute care hospitals, medical ambulatory practices with ten or more licensed providers participating in health care delivery, and all community health centers) to connect to the MassHIway between 2017 and 2019, while other types of providers (behavioral health entities, dental clinics, nursing homes) will be required to connect at a date to be specified, with at least one-year notice (and no earlier than January 2018).  Connection requirements will be established through future regulations.  The proposed regulations would require that providers that are required to connect to demonstrate compliance by attesting to implementing at least one “Use Case of HIway Direct Messaging.”  Examples of this are a hospital using the Mass HIway to send discharge summaries to a receiving facility, or a primary care physician practice using the Mass HIway to send referrals.  The proposed regulations require acute care hospitals to send Admission, Discharge, and Transfer messages using the Mass HIway.

Regarding the opt-in or opt-out mechanism, the proposed regulations will require that a provider must provide written notice to patients that it will use the Mass HIway, and must include in this written notice instructions in the event the patient chooses to opt-out.  Thereafter, either the provider will inform Mass HIway of the patient’s decision to opt-out, or will provide the patient with instructions on how to do so.

A public hearing was held by the EOHHS on Monday November 28, 2016, and public comments were accepted until Tuesday November 29, 2016. Additionally, the EOHHS accepted electronic written testimony.

The proposed regulation can found here.

Medicare Physician Payment: A Brave New MACRA and MIPS World

William M. Mandell - Thursday, April 30, 2015

By William Mandell, Esq. and Karen Rabinovici, Esq.

The Medicare Access and CHIP Reauthorization Act of 2015 (“MACRA”)  --  passed this month in an unusual bipartisan effort  -- permanently repealed the Medicare Part B Sustained Growth Rate formula that would have resulted in a 21.2% cut to physician reimbursement scheduled to take effect on  April 1, 2015. It also notably establishes a new Medicare Part B performance driven payment system.

Under MACRA – which became effective on April 1, 2015 -- the Medicare Part B payment system for physicians has undergone perhaps its most dramatic change since the enactment of Medicare in 1965 or certainly since the adoption of the RBRVS fee system. MACRA gradually increases Medicare Part B rates over the next 4 ½ years and will then reward or penalize physicians financially based on measures of their performance. During this initial 4 ½  year period, Medicare participating doctors will receive a 0.5% increase each year as Medicare transitions away from a primarily fee-for-service system to one designed to reward physicians based on the quality of the care that they provide.  The first increase takes effect on July 1, 2015, followed by annual 0.5% increases going into effect each January 1 through 2018.  From January 2020 through 2025, there are no increases to rates but physician will be subject to performance based adjustments. For 2026 and beyond, physicians who are participating in alternative payments systems will be eligible for an annual update of 0.75% with all others receiving a 0.25% increase.

Between this year and 2018 the Physician Quality Reporting System, Meaningful Use, and the Value-Based Payment Modifier programs continue in their current form. Beginning in 2019, these program will end and elements of each will be included in a new Merit-based Incentive Payment System.

The MIPS Medicare Part B reimbursement system goes into effect in 2019 and is intended to move physician and other professional Part B reimbursement from a fee-for-service to a quality and performance driven system. Under MIPS physicians, and other practitioners such as physician assistants, nurse practitioners, clinical nurse specialists and certified registered nurse anesthetists, participating in the Medicare program will be evaluated via a composite score based on four factors: quality, resource use, meaningful use, and clinical practice improvement activities. Each doctor’s composite score will result in positive or negative adjustments to Medicare reimbursement based on the doctor’s performance on these factors. Physicians may receive a bonus or be assessed a penalty that will be calculated using a sliding scale based on whether the doctor is above or below performance thresholds.

MACRA requires the United States Department of Health and Human Services to establish an annual list of quality measures from which doctors and other MIPS-eligible professionals may choose for purposes of assessing the quality factor. HHS is also required to establish MIPS performance standards that consider historical performance, improvement and the opportunity for continued improvement.

Under MACRA there is a provision that prohibits plaintiffs from using a physician's performance on federal quality measures, including MIPS as well as the remainder of the Meaningful Use, Physician Quality Reporting System and Value-Based Payment Modifier programs, as the sole basis to prove negligence in a medical malpractice lawsuit.

Before the passage of MACRA the medical community was very concerned about the use of quality metrics as evidence by plaintiffs as a basis to assert that a doctor committed negligence. Now medical malpractice plaintiffs may not assert a negligence claim against a doctor on the sole basis that he or she did not earn an incentive or was penalized under any federal health care guideline or standard, used in the MU, PQRS, VBPM or MIPS programs. Furthermore, the fact that a physician did not render a service covered under the Affordable Care Act may not be the sole fact to assert that a physician breached his or her duty of care to a patient.

The MACRA liability protections, however, do not totally prevent the introduction of these facts into evidence in a medical malpractice case. And, it certainly does not go as far as legislation that has been sought by many medical associations that would have provided immunity from liability and other civil suit protections for doctors who are sued and can prove they followed any evidence-based clinical guidelines.

MACRA provides $100 million in funding -- $20,000,000 for each of the fiscal years 2016 through 2020 --   to underwrite technical support to small medical practices with 15 or fewer professionals that desire to participate in the new alternative payment models.  HHS is to work with quality improvement organizations and other regional entities certified by the federal government to provide guidance to such small practices on how to prepare for and transition to quality driven reimbursement, with priority given to rural practices, locations with provider shortages, and medically underserved areas.

In order to devise alternative payment models, develop measures to judge the quality of care provided, and determine how physicians will be rewarded or penalized based on their performance, MACRA mandates the establishment of a 11 person technical advisory committee This committee is charged with reviewing and recommending physician-developed alternative payment models based on criteria developed through an open comment process. Not later than July 2016, HHS is required to submit to Congress a study on the feasibility of integrating alternative payment models in the Medicare Advantage payment system.

MACRA also establishes Medicare payment for chronic care management when performed by a physician, physician assistant, nurse practitioner, clinical nurse specialist, or certified nurse midwife.

Alternatively, physicians who choose to participate in ongoing and future new payment models such as accountable care organizations (ACOs), patient-centered medical homes, and initiatives under Medicaid waivers can receive annual bonuses of 5 percent for services in 2019-2024 and not be subject to MIPS requirements.

As with any major federal health reform legislation many more details will be forthcoming in agency rules and other implementation actions required under the law. So while much has yet to be seen, what is clear is that all medical practices and other Part B providers must begin to prepare now for adapting to a substantially overhauled Medicare reimbursement system where performance measures will drive payments and the infrastructure needed to capture and utilize performance data effectively will be essential to maximizing revenues and fulfilling patient expectations and payer requirements.

If you would like more information about any part of MACRA, please do not hesitate to contact us.

William Mandell is a shareholder and health law practice leader, and Karen Rabinovici is an associate, at Pierce & Mandell, P.C, of Boston. 


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