Podcast interview with Kathy Roe of Neal, Gerber & Eisenberg LLP (transcript)

This is a transcript of my podcast interview with Kathy Roe, a partner in the Health Law Practice group at Neal, Gerber & Eisenberg in Chicago regarding the health IT provisions of the federal stimulus law.

David Williams: This is David Williams, co-founder of MedPharma Partners and the author of the Health Business Blog. The stimulus bill signed into law last month contains over 100 billion dollars in health care related funding, including about 20 billion dollars specifically for health care IT. After reading the legislation I still have a lot of unanswered questions about how this money is going to be made available and to whom. So today I’m speaking with an expert on the topic, Kathy Roe. She is a partner in the Health Law Practice Group at Neal, Gerber & Eisenberg in Chicago.

Kathy thanks for being with me today.

Kathy Roe: Thank you for having me David.

David: Kathy, what aspects of the stimulus bill are relevant for health care IT?

Kathy: There are three, maybe even four, depending upon a person’s point of view. The one that has received the most attention to date is the portion of the bill that deals with the various funding vehicles to get electronic health records off the ground with providers around the country and begin to make real the goal of everybody having access to an electronic health record by 2014. So the first piece is the dollars.

There are two other pieces that are covered in the bill that really are critical in terms of creating that national electronic health information highway. One of those pieces is the infrastructure that the government is setting up to establish the technology and implementation standards for health information technology so that the systems actually talk to each other.

The other piece is the enhanced data privacy and data security requirements. There are many who are concerned that with more and more data becoming electronic that the risk to that data could actually be enhanced, so the bill has introduced a number of new data privacy and security requirements.

I would say those three pieces are key pieces that all work together relative to getting health information technology up and running so that we have a 21st century healthcare system.

David: When people talk about that the 20 billion dollars,  90 percent of it is not actually in the funds that are going be to be handed out now, but rather it’s starting in 2011, when they start to receive incentive payments if they are using EHRs in a meaningful way. Can you explain the philosophy behind that?.

Kathy: The monies under Medicare and Medicaid don’t start flowing until 2011. For some of the monies it’s calendar year based and for others it’s fiscal year based, so we are even talking about different parts of 2011.There are also elements of funding that go towards initiating various state grant programs and loan programs. Some of those monies are actually intended to began to flow this year. And those would relate to state planning and implementation grants to get under way activity in states relative to electronic health information exchange.

And then you also have a loan program that the government is funding  that would get under way in 2010. So those are a couple of ways that dollars start flowing earlier than 2011. With the loan program the idea is actually to make monies available to providers to purchase the technology, that at least under the Medicare incentive program they will need to demonstrate “meaningful EHR use” to qualify for the incentive. So there is some logic to the timeframes laid out in the bill.

David:  So to recap, in 2009 there are some planning grants, in 2010 there is some loan money available and then in 2011 incentives start to flow. Can you talk a little bit about ‘meaningful use’? What does meaningful use really mean? If somebody goes ahead and takes out a loan and makes an investment in an EHR system, is it clear to them what meaningful use is going to be?

Or in the end will we have unhappy folks that invested a lot but don’t qualify for incentive payments?

Kathy: I think that over time that will become clear. One thing that comes out clearly is that there are lot of studies and reports that are authorized in the bill. Some of that data collecting and analysis is to be taken into account so that every year there is a re-evaluation of the standards of what it means to be a meaningful user.

Right now what we know under the bill is that there are three components. You have to use certified EHR technology (and that has some fluency because the required certification standards will have to be adopted by HHS). There’s a question mark there but the bill clearly provides for the government to work off the efforts to date.

So you’ve had CCHIT. You’ve had HITSP out there handling certification on a voluntary basis and standards development. So while it’s not assured, the bill certainly is rooting for the government, particularly the Secretary of the HHS and the national coordinator, to build on those efforts. So you have certified EHR technology as one component. The second component, going back to the whole idea of interoperability and systems talking to each other and the technology that is used, the EHR technology has to allow for health information and demographic information to be exchanged electronically between the different players in the health care systems.

And then lastly you have to submit reports on clinical quality measures through the EHR. Here’s where the government has said outright that those clinical quality data measures will be prescribed by HHS. So I think what we will see is what we see today with the Medicare E -prescribing incentive program, where you have Congress legislate, then there are regulatory activities. Then there is a lot of guidance that came out from the government that really lays out the details of the different reporting requirements and other related elements that it takes to be a meaningful user.

David: You’ve cleared up a couple of things for me. One is about the timing: the fact that money is available now and that meaningful use, even if it isn’t well defined now, there are some pretty clear indications and precedents to guide people who are doing that. So I guess what I take from that is people shouldn’t be sitting still and waiting for further definition.

Can you give me a sense of what some of the parties should be thinking about? If I’m a hospital or physician group, how should I be thinking about the stimulus money that is coming?

Kathy: I actually think people should get moving now. While the dollars will take little bit of time to start flowing at least under Medicare and Medicaid you can certainly start planning, particularly if you don’t have EHR infrastructure in place. It is oftentimes a much larger,  much more complicated effort to get an EHR system off the ground than people anticipate.

You often have issues come one up that weren’t anticipated. It’s not only technology that you are talking about, but changes to work flows that have to be introduced. So you have a whole lot of cultural issues to deal with along with introducing new technology to use in delivering care. So use this time to investigate and begin to prepare.

One of the things would be to find out what your state is doing. There are a number of vehicles by which monies will flow from the federal government, including not only the planning grants, the implementation grants that states can compete for but also loan programs for EHR and other similar programs.

I would recommend that the providers find out what their state is doing and if nobody in the state is doing much consider becoming something of an initiator to get the process under way in a particular state, so that you are sure that your state will be a player and a recipient of dollars under these programs.

And if the state does not turn out to be a viable party to look to for leadership on this issue, then the other alternative would be to investigate what your trade association is doing or what your professional health care society is doing. They may not be eligible for the different monies but they certainly have an opportunity to participate in the standards development process either by being a member of one of the federal advisory committees or commenting and actively trying to shape these requirements for a national health information infrastructure. So bottom line, get moving.

David: What about the states themselves? Have you seen some of the states undertake initiatives already or how do you expect that to unfold? Is it going to be the HHS secretaries within the various states or what do you expect to see happening at the state government level?

Kathy: Particularly states where you already have some health information exchange under way, such as Minnesota, Florida or Tennessee, those states will be out in front trying to get their arms around what the bill has to offer for them, where they may want to take advantage of the money that is available.

As we were talking about the meaningful EHR user definition, not everything is spelled out, so for some of these programs we will have to wait to until the Department of Health and Human Services begins to issue notices in the Federal Register relative to the program requirements: What does it take to apply? What is the timeframe? As far as having seen any state taking action, one state that was out of the blocks I’d say within a week to ten days after the bill passed appears to be California.

There is an issue brief that the California HealthCare Foundation has issued that goes through various funding vehicles under the stimulus package and it talks about how California should begin to act in order to take advantage of each of the different buckets of money that will be available. That’s a public document.

David: The stimulus bill wasn’t explicitly meant to be a health care reform bill, but what’s the connection between the health IT provisions in the stimulus bill and other health care reforms that may come down the road?

Kathy: I think the biggest connection is around addressing the deficiency in health care quality and the sky high health care costs in this country, particularly relative to counterpart countries throughout the world. One thing that has been repeatedly talked about is the fact that with the increased use of electronic health records you’ll avoid duplication in tests and other services because your specialist will have the records from your visit to another health care specialist or primary  care provider and hopefully won’t feel the need to run another blood test or another radiology scan on you.

Another place is with respect to the opportunities that it offers for care coordination. Think about the chronic conditions and how health care providers tie them in through an electronic health record to reduce cost, which along with increasing access seem to be the primary focus of  President Obama’s administration. And when you talk about how will costs be addressed one of the ways that is discussed is changing the reimbursement methodology for health care providers, so you are not paying on a procedure basis, which can be thrown off course through the excess volume. Electronic health records can help move towards a payment methodology that is premised on paying for outcomes, because you’ll have data available relative to the patient and hopefully over time you’ll have clinical decision making tools to assist providers in making judgments about what is the right treatment for the patient sitting before him or her. So the focus on health information technology and focusing on it first can tie in with the reform to reimbursement and getting our cost of health care under control.

David: Kathy, what issues do you expect to address with your clients on this topic over the coming months?

Kathy: I think there will be more questions on the data privacy and security aspects of the bill. As I alluded to there is logic to the timing of the different pieces that are in the bill. Enhanced data privacy and security requirements; those generally take effect in the next year and so that‘s one piece that you get in place before large amounts of money began to flow. The other piece is the technology standards and implementation specifications. There is a real aggressive timeline there. There are several required standards that are supposed to be adopted by rule by the Secretary of HHS by the end of the year, so I think that’s where a lot of effort will be focused through the remainder of 2009,  preparing for those data privacy and data security requirements, which will entail changes in policies, changes in procedures, new training, opening of business associate agreements, as well as the activities around participating in the standards development process and trying to build upon what happened to date and make that workable at least for the immediate term. So to your earlier point, don’t penalize those folks who have gotten underway with an electronic health record.

David:  I’ve been speaking today with Kathy Roe. She is a partner in the Health Law Practice Group at Neal, Gerber & Eisenberg in Chicago. We were speaking about the stimulus law and the health care IT implications.

Kathy, thanks for joining me today.

Kathy: Thank you for having me David.

April 29, 2009

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