I am amazed that medical practices still have the time to see and treat patients.  Between complying with the HIPAA Privacy and Security Rules, implementing EMRs, working on stimulus reimbursements, checking for patient pre-authorization,  battling insurance companies over reimbursement rates and the whole medical billing process; it is amazing that there is time left to treat patients.  So with that said let’s look forward to June 1, 2010 when medical practices have to worry about the Federal Trade Commission’s (FTC) Red Flag Rule.

According to the American Medical Association (AMA) the Red Flag rule has been delayed many times before.

In Nov. 2007, the Federal Trade Commission (FTC) issued a set of regulations, known as the “Red Flags Rule,” requiring that certain entities develop and implement written identity theft prevention and detection programs to protect consumers from identity theft. Originally scheduled for a Nov. 1, 2008 compliance date, the FTC has now delayed the enforcement date of the Red Flags Rule until June 1, 2010. The new compliance date of June 1, 2010, which follows three earlier extensions to May 1, August 1 and then later to Nov. 1, is a result of continued advocacy by the AMA and others who continue to object to the applicability of this Rule to health care providers and other professionals.

In an AMA editorial on March 15, 2010 they argue that the FTC is improperly applying rules, that are normally enforced on the banking industry, to medical practices.

As of June 1, physician practices are supposed to have written identity-theft and detection programs in place to satisfy what is commonly known as the red flags rule. The FTC aimed the regulation at what it referred to as “creditors,” meaning, generally, banks and credit-card companies, to protect consumers’ account information from being misused.

Only months before the original Oct. 1, 2008, deadline for compliance, the FTC said physicians must comply with the red flags rule because, by virtue of billing and collecting payments only after services were completed, they also were “creditors.” This, despite the FTC’s final rule, in June 2008, making no mention of physicians, and only a single reference to medical identity theft.

The claims payment process is not a deferral process, a way to extend credit to patients. Instead, it simply reflects the realities under which doctors have legal, ethical and contractual obligations under federal and state laws that govern insurance relationships. Generally, a physician is barred from requiring that certain payment conditions be met upfront before treatment. So does the FTC think physicians can, and should, demand money upfront so they are no longer considered creditors?

It looks like the AMA will continue to push back on the FTC but for now June 1, 2010 is the date to start implementing procedures to comply with the Red Flag rule.  The AMA has published a sample policy that can be customized to your practice.  So add another policy, procedure and government regulation to the list of things to worry about. 

The American Medical Association (AMA) along with 95 other physician organizations and associations (including including state, education and medical societies) have written a letter to the Centers for Medicare & Medicaid Service (CMS) with their comments regarding meaningful use and the EHR incentive program.  The 37 page letter outlines where the organizations agree and disagree with the proposed definition of meaningful use and it’s direct correlation to the EHR incentive payments.  To summarize the entire letter would be a lengthy process so I will pick out sections that caught my eye.

The overall message to CMS was that the proposed meaningful use requirements to achieve the initial stimulus payments are too aggressive and the cost to achieve them will deter physicians from participating in the EHR incentive program.

Physicians are deeply supportive of and committed to incorporating well-developed EHRs into their practices to improve quality of care delivery, enhance patient safety, as well as support practice efficiencies. To facilitate this transition, we want to ensure that there is widespread adoption and meaningful use of EHRs by physicians. We do, however, feel strongly that the Stage 1 criteria proposed by CMS for achieving meaningful use of EHRs is too aggressive and if adopted, will deter many physicians from participating in the Medicare and Medicaid incentive programs. This runs counter to the intent of ARRA, which clearly indicated that demonstrating meaningful use should progress over time.

The organizations are concerned about the impact on smaller physician groups.  They also are concerned with the high failure rates of EHR adoption.

The vast majority of physicians practices are comprised of five or fewer physicians.  Encouraging physician adoption of health IT, especially small physician practices, is critical to ensuring widespread EHR use. Studies of EHR adoption clearly show that it takes more time for smaller practices to adopt and implement EHRs because they have fewer resources and support. Aggressive timelines and criteria during the initial stage of the incentive program will only serve to undermine this effort. Some government officials have relayed that complex measures and high reporting thresholds are needed to discourage EPs from switching back to the use of paper during this transition to EHRs.  We are very troubled by this assertion. Physicians are deeply supportive of and  committed to incorporating well-developed EHRs into their practices to improve quality of care delivery, enhance patient safety, as well as support practice efficiencies. It is also very unlikely that after physicians make a significant up front investment in health IT and changes to their workflow that they will revert back to manual processes. We believe that the larger concern should be deterring the purchasing of costly EHR products that fail to improve physician workflow, patient care, and practice needs. Industry experts have cited that such failures have adversely affected EHR adoption rates ranging from 50 to 80 percent.

The letter goes on to suggest that the requirements for Stage 1 meaningful use should be spilt over the first two years.

We strongly agree with CMS’ proposal for establishing a staged approach to achieving “meaningful use” of EHRs. In this way, eligible professionals (EPs) are provided a predictable pathway, enabling them to plan, including consideration of practice workflow changes, and to engage in critical discussions with EHR vendors regarding functionalities. To support this, we strongly recommend that the focus of Stage 1 for the health IT functionality measures be on data entry (e.g., problem list, medication list) and structured data (e.g., enable EHR functionality for drug-drug, drug-allergy, drug 4 formulary checks). If achieved consistently and accurately, a more seamless use and reporting of quality measures will result. Therefore, we believe Stage 1 should be redefined and the proposed criteria should be segmented into two years to provide more flexibility on functionality measures and selection/awareness of quality measures

The letter addresses each of the 25 meaningful use objectives and describes where the organizations agree and disagree with the proposed objectives.  In my opinion it seems that the message to CMS is that they support the objectives but would like to see Stage 1 objectives scaled back.  The big push should be to get providers to implement EHRs and start using them, without strict requirements, to achieve the stimulus payments.  The organizations recognize that it is costly to implement EHRs and use them in meaningful ways.  It is costly to interface them with other systems including lab results, insurance providers, other EHRs.  And it is costly to support the new technology that is required.  Physician practices need to believe that the meaningful use objectives are realistic and that they are able to meet them.  Furthermore, they need to feel that they will be able to obtain the stimulus incentives to offset the costs of EHR adoption.  I feel the letter correctly addresses a lot of the issues that physician practices, both small and large, will face as they begin implementing EHRs.  It will be interesting to see what CMS does with the organizations’ recommendations.

The letter can be found on the AMA website.