LTACHs and other Post-Acute Providers are Not Eligible for Funds to Implement EHR Technology under the HITECH Act

Posted by Jason Greis on August 7, 2009 under Articles | Be the First to Comment |  Print

Many LTACHs and other post-acute care providers have inquired whether they are eligible to apply for and receive incentive payments to adopt certified electronic health record (“EHR”) technology under the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act” or the “Act”).  To put it simply, the answer appears to be “no.”

The HITECH Act is part of the American Recovery and Reinvestment Act of 2009.  The Act offers up to $17 billion in Medicare and Medicaid incentives for eligible physicians and hospitals to adopt certified EHR technology prior to fiscal year 2015.   It should be noted that eligible providers may only seek incentives under either Medicare or Medicaid, but not both.  Under the Act, eligible providers may receive up to $64,000 (for individuals) and $11 million (for hospitals) in incentives over the life of the program to implement a certified EHR system.

Not all healthcare providers are eligible for these financial incentives.  Instead, they are only available to eligible physicians and group practices.  Individual physicians who are “hospital-based” are not eligible for incentive payments.  The Act defines “hospital-based professionals” to include pathologists, anesthesiologists, and emergency physicians who furnish substantially all of their services in a hospital setting (either inpatient or outpatient).  Some, but not all, hospitals are also eligible for the incentive payments.  An “eligible hospital” is defined under section 4102(a)(6)(B) of the Act.  An “eligible hospital” is defined as a “subsection (d) hospital” that is making meaningful use of an EHR system and that submits quality metrics based on criteria identified by HHS.

Subsection (d) hospitals only include  short-term acute care hospitals.  LTACHs, psychiatric hospitals, skilled nursing facilities, rehabilitation hospitals, childrens’ hospitals, and comprehensive cancer centers and clinical cancer research centers are not “subsection (d)” hospitals, per 42 U.S.C. 1395ww(d)(1)(B).  Therefore, LTACHs and other post-acute care providers do not presently qualify for incentives to implement EHR systems under the HITECH Act.   According to Bill Walters, CEO of the Acute Long Term Hospital Association (“ALTHA”), one of two industry groups representing LTACH providers, ALTHA intends to lobby for change to address this funding disparity.

Jason S. Greis, Esq.
McGuireWoods LLP
312.849.8217