[Senate Report 114-106]
[From the U.S. Government Publishing Office]
Calendar No. 185
114th Congress } { Report
SENATE
1st Session } { 114-106
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ELECTRONIC HEALTH FAIRNESS ACT OF 2015
_______
July 30, 2015.--Ordered to be printed
_______
Mr. Hatch, from the Committee on Finance,
submitted the following
R E P O R T
[To accompany S. 1347]
The Committee on Finance, to which was referred the bill
(S. 1347) to amend title XVIII of the Social Security Act with
respect to the treatment of patient encounters in ambulatory
surgical centers in determining meaningful EHR use, and for
other purposes, having considered the same, reports favorably
thereon with an amendment and recommends that the bill, as
amended, do pass.
I. LEGISLATIVE BACKGROUND
Background and need for legislative action
The Health Information Technology for Economic and Clinical
Health (HITECH) Act of 2009 authorized Medicare and Medicaid
incentive payments to promote the use of electronic health
record (EHR) technology. Physicians and other professionals,
collectively referred to as ``eligible professionals'', and
eligible hospitals qualify for incentive payments under the
HITECH Act if they become meaningful users of certified EHR
technology (CEHRT). In order to demonstrate meaningful EHR use,
participants must attest to using their EHR systems to meet a
series of objectives (and associated measures); for example,
capturing and sharing patient data, electronic prescribing, and
exchanging summary of care information with other health care
providers.
Eligible professionals who demonstrate meaningful CEHRT use
can receive up to $43,720 in Medicare incentive payments over
five years. Beginning in 2015, eligible professionals who do
not successfully demonstrate meaningful use will be subject to
a payment adjustment which reduces their Part B reimbursement
for covered professional services furnished for the year;
payment reductions can range from 1 percent to 5 percent.
Through The Medicare Access and CHIP Reauthorization Act of
2015 (MACRA), the existing Medicare meaningful use payment
adjustments for eligible professionals who fail to meaningfully
use CEHRT, sunset in 2018. The payment adjustment remains
unchanged for hospitals. Thereafter, meaningful use will be
used as one of the components of the composite score under the
Merit-based Incentive Payment System (MIPS) program established
by MACRA.
To qualify for Medicare EHR incentive payments, the
Secretary determined eligible professionals as those who
furnish at least 50 percent of their patient encounters during
the reporting period in locations with CEHRT. HITECH excluded
physicians from the incentive program who furnish
``substantially all'' of their services in an inpatient
hospital or hospital emergency department using CEHRT. The
Secretary has determined that patient encounters furnished in
an ambulatory surgical center (ASC), by an eligible
professional, are included in the denominator when the payment
adjustment is being calculated. Under HITECH, however, ASC
facilities are not eligible for the Medicare EHR incentive
program. As a result, eligible professionals furnishing
services in an ASC are more likely to receive a payment
adjustment because ASCs are not required to have the
technology. Moreover, producing ASC-specific EHR technology has
not been a vendor priority; additionally, certification of ASC-
specific technology is not included in the Office of the
National Coordinator (ONC) certification process.
II. EXPLANATION OF THE BILL
PRESENT LAW
In general
Under Section 1848(o)(2) of title XVIII of the Social
Security Act,\1\ Medicare provides incentive payments to
hospitals and eligible professionals who become ``meaningful
users'' of certified electronic health technology. Beginning in
2015, eligible professionals who are not meaningful users may
be subject to a Medicare payment adjustment (penalty).
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\1\Pub. L. No. 74-271.
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REASONS FOR CHANGE
The Committee recognizes the importance of the Medicare
``meaningful use'' incentive program to advance the goal of
providers acquiring electronic health records as a tool to
provide high quality, more coordinated care. Although HITECH
requires professionals (and hospitals) to use certified EHR
technology to receive incentive payments and avoid payment
reductions, HITECH did not include ASC facilities in the
Medicare EHR incentive program. Therefore, development of EHR
products specifically for the ASC setting has not been a vendor
priority, nor has it been included in the certification
process. Therefore, providers in ASC facilities should not be
disadvantaged in the program.
EXPLANATION OF PROVISION
The bill, as modified by the Committee, would exclude ASC
services from being counted toward the 50 percent meaningful
use eligibility threshold until CEHRT applicable to the ASC
setting is available. This exclusion would end three years
after the Secretary, by rulemaking, determines that CEHRT
applicable to the ASC setting is available.
Effective date
The provision applies upon enactment of the bill.
III. BUDGET EFFECTS OF THE BILL
A. Committee Estimates
In compliance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate, the following statement is made
concerning the estimated budget effects of the revenue
provisions of the ``Electronic Health Fairness Act of 2015'' as
reported.
The bill is estimated to have the following effects on
Federal budget receipts for fiscal years 2016-2025:
Fiscal Years
[Millions of dollars]
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2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2016-20 2016-25
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- - - 2 5 6 2 0 0 0 0 0 0 15 15
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NOTE: Details do not add to totals due to rounding.
Source: Estimate provided by the staff of the Congressional Budget Office.
B. Budget Authority and Tax Expenditures
Budget authority
In compliance with section 308(a)(1) of the Congressional
Budget and Impoundment Control Act of 1974 (``Budget Act''),\2\
the Committee states that no provisions of the bill as reported
involve new or increased budget authority.
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\2\Pub. L. No. 93-344.
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Tax expenditures
In compliance with section 308(a)(1) of the Budget Act, the
Committee states that the revenue-reducing provisions of the
bill involve increased tax expenditures (see revenue table in
Part A, above).
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
S. 1347--Electronic Health Fairness Act of 2015
Summary: Under current law, a physician or other
professional may be subject to payment reductions for services
furnished to Medicare beneficiaries if the provider fails to
achieve ``meaningful use'' of electronic health record (EHR)
technology. The meaningful use standard requires that at least
half of the provider's patient encounters occur in a setting
that uses certified EHR technology. S. 1347 would temporarily
exclude services furnished in an ambulatory surgical center
(ASC) from being included in the count of patient encounters
for the purpose of determining whether a provider achieves
meaningful use of EHR technology.
CBO estimates that enacting S. 1347 would increase direct
spending by $15 million over the fiscal year 2016-2025 period.
Pay-as-you-go procedures apply because enacting the legislation
would affect direct spending. The legislation would not affect
revenues.
S. 1347 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
Estimated cost to the Federal Government: The estimated
budgetary effect of enacting S. 1347 is shown in the following
table. The costs of this legislation fall within budget
function 570 (Medicare).
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By fiscal year, in millions of dollars--
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2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2025 2016-2020 2016-2025
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CHANGES IN DIRECT SPENDING
Estimated Budget Authority........................ 2 5 6 2 0 0 0 0 0 0 15 15
Estimated Outlays................................. 2 5 6 2 0 0 0 0 0 0 15 15
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Basis of estimate: S. 1347 would amend the criteria used to
determine whether an eligible professional achieves meaningful
use of EHR technology. For physicians who fail to achieve
meaningful use in one year, Medicare's payments for services
furnished in the following year are reduced. Under current law,
providers who fail to achieve meaningful use will be subject to
a 2 percent reduction in Medicare payment rates in calendar
year 2016 and a 3 percent reduction in 2017 and 2018. After
2018, providers will not be subject to a payment reduction
based on meaningful use of EHR technology.
To qualify as a meaningful EHR user under current law, an
eligible professional must conduct at least 50 percent of
patient encounters at a place of service that is equipped with
certified EHR technology. Many providers furnish services in
more than one place of service (for example, a physician's
office, hospital outpatient department, or an ASC). S. 1347
would exclude services furnished at an ASC from being counted
as patient encounters for the purpose of determining whether a
provider satisfies the 50 percent threshold.
Very few ASCs currently have EHR technology. As a result,
S. 1347 would make it easier for professionals who furnish some
of their services in the ASC setting to qualify as meaningful
users of EHR technology. Based on analysis of the extent to
which physicians provide a share of services in ASCs, CBO
estimates that enacting S. 1347 would enable almost 2,000
providers to avoid payment reductions that will average about
$2,000 in 2016 and about $3,000 in both 2017 and 2018.
Enacting S. 1347 would affect the determination of
meaningful use beginning with services furnished during 2015,
and would affect payments beginning in 2016. As a result, CBO
estimates that enacting S. 1347 would increase spending during
calendar years 2016 through 2018 (fiscal years 2016 through
2019) by a total of $15 million.
Pay-as-you-go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending or
revenues. The net changes in outlays that are subject to those
pay-as-you-go procedures are shown in the following table.
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By fiscal year, in millions of dollars--
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2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2015-2020 2015-2025
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NET INCREASE IN THE DEFICIT
Statutory Pay-As-You-Go Impact............ 0 2 5 6 2 0 0 0 0 0 0 15 15
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Intergovernmental and private-sector impact: S. 1347
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Previous estimate: On March 12, 2015, CBO provided a cost
estimate for H.R. 887, as ordered reported by the House Ways
and Means Committee on February 26, 2015. The two versions of
the bill are almost identical, except that S. 1347 specifies
that the change in meaningful use determination would go into
effect after 2015, which would affect spending beginning in
2016. H.R. 887, by contrast, did not specify an effective date.
CBO's estimate for H.R. 887 anticipated that the change in
spending would take effect in 2017--after a rulemaking process.
The estimated budgetary effects also differ because of
changes in the Medicare Access and CHIP Reauthorization Act,
enacted on April 16, 2015. That legislation eliminated payment
adjustments for eligible professionals after payment year 2018
and increased payment rates for physicians' services.
Estimate prepared by: Federal costs: Zoe Williams Impact on
state, local, and tribal Governments: J'Nell Blanco Suchy;
Impact on the Private Sector: Amy Petz.
Estimate approved by: Holly Harvey, Deputy Assistant
Director for Budget Analysis.
IV. VOTES OF THE COMMITTEE
In compliance with paragraph 7(b) of Rule XXVI of the
standing rules of the Senate, the Committee states that, with a
majority present, the ``Electronic Health Fairness Act of
2015,''--as modified, was ordered favorably reported on June
24, 2015 as follows:
Final Passage of ``The Electronic Health Fairness Act of
2015'' approved, as modified, by voice vote.
V. REGULATORY IMPACT AND OTHER MATTERS
A. Regulatory Impact
Pursuant to paragraph 11(b) of Rule XXVI of the Standing
Rules of the Senate, the Committee makes the following
statement concerning the regulatory impact that might be
incurred in carrying out the provisions of the bill as amended.
Impact on individuals and businesses, personal privacy and paperwork
The bill is not expected to impose additional
administrative requirements or regulatory burdens on
individuals. The bill is expected to reduce administrative
requirements and regulatory burdens on some businesses.
The provisions of the bill do not impact personal privacy.
B. Unfunded Mandates Statement
This information is provided in accordance with section 423
of the Unfunded Mandates Reform Act of 1995 (Pub. L. No. 104-
4).
The Committee has determined that the bill does not contain
any private sector mandates. The Committee has determined that
the bill contains no intergovernmental mandate.
VI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
In the opinion of the Committee, it is necessary in order
to expedite the business of the Senate, to dispense with the
requirements of paragraph 12 of Rule XXVI of the Standing Rules
of the Senate (relating to the showing of changes in existing
law made by the bill as reported by the Committee).
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