Health Care Law Reform : Health Care Lawyer & Attorney : McDermott Will & Emery Law Firm : Managed Care, Product Regulations

The Facts

President Obama is reportedly poised to nominate Don Berwick, M.D., M.P.P., to head the Centers for Medicare & Medicaid Services (CMS).  Since 2006, when Dr. Mark McClellan left, CMS has been without a permanent administrator. 

Berwick is the current president and CEO of the Institute for Healthcare Improvement, a Cambridge, Massachusetts, organization that seeks to improve health care by "building the will for change, cultivating promising concepts for improving patient care, and helping health care systems put those ideas into action."  In its work, the institute seeks to "accelerate the measurable and continual progress of health care systems."  For more information about the institute, visit http://www.ihi.org/ihi/about/.  Berwick is also a clinical professor of pediatrics at Harvard Medical School and a professor of health care policy at the Harvard School of Public Health.  Berwick served as vice-chair of the U.S. Preventive Services Task Force, and chair of the National Advisory Council of the Agency for Healthcare Research and Quality.  He also served two terms on the Institute of Medicine’s governing council.

Berwick would have the difficult job of managing and improving Medicare, Medicaid and the Children's Health Insurance Program, while simultaneously implementing much of the recently enacted health reform legislation.  While Medicare currently covers 46 million Americans, Medicaid currently covers 43.5 million Americans and is slated to expand to cover an additional 16 million individuals through expanded eligibility in health reform legislation.  However, in light of Berwick’s vast experience in the area of health quality improvement, he seems well-positioned to lead CMS as the agency positions itself to increasingly focus on paying for value as opposed to volume.

What’s at Stake

As the new head of the largest medical payer in the nation, Berwick’s leadership and decisions would significantly affect almost everyone in the health care sector.  With the enactment of health reform legislation, implementation is the primary focus of the Obama administration.  Berwick would have a vital role in determining how this reform is rolled out and ensuring that this reform meets U.S. Department of Health and Human Services Secretary Kathleen Sebelius’s goal of HHS becoming “the face of competent government — the face of a help desk that can really respond to personal issues and questions.”

Steps to Consider

The post of CMS administrator requires U.S. Senate confirmation, a process that may reignite the deep political and philosophical divisions about the newly passed health reform legislation.  Thus, all in the health care sector should monitor the nomination and Senate confirmation process.

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On a parallel track with health reform initiatives, the Centers for Medicare and Medicaid Services (CMS) continues its annual process of proposing changes to the existing Medicare payment systems.  The proposed 2010 Medicare Physician Fee Schedule Update, published in the July 13, 2009, Federal Register (74 Fed. Reg. 33520), includes a number of important changes to physician reimbursement, including a significant reduction in physician fees (unlikely to survive the final rule intact) as well as the "usual" array of technical revisions to the Medicare Physician Fee Schedule.  Click here for a brief summary of key proposals.

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The Facts
The American Recovery and Reinvestment Act authorizes the Centers for Medicare & Medicaid Services (CMS) to provide incentives to certain physicians and hospitals who achieve “meaningful use” of a certified electronic health record (EHR) system.

The act established the Health Information Technology (HIT) Policy Committee, which issued a draft definition of “meaningful use” at its June 16, 2009, meeting.  The committee recommended a progressive definition, where “meaningful use” is ultimately linked to achieving measurable outcomes in patient engagement, care coordination and population health.  The 2011 objectives are intended to establish a foundation for affecting a more comprehensive set of health outcomes in the future.  By 2015, the objectives are to achieve and improve performance and support care processes.  A matrix including the full proposed definition of “meaningful use” is available at http://healthit.hhs.gov/.

The committee has asked a workgroup of the committee to submit a new set of recommendations for “meaningful use” at the committee’s July meeting.  The committee is currently accepting comments regarding the proposed draft, but it is not clear whether it will offer a comment period after the revised draft.  The committee’s recommendations are non-binding, but will provide guidance to CMS, which will ultimately establish the definition for “meaningful use.”

What’s at Stake
Beginning in 2011, those physicians and hospitals who can demonstrate “meaningful use” of a certified EHR system will receive incentive payments through additional Medicare reimbursement.  Beginning in 2015, those who have not achieved “meaningful use” will be subject to certain downward adjustments in their Medicare reimbursement rates.

Steps to Consider

• Consider submitting comments to the Department of Health and Human Services (HHS) on the draft definition of “meaningful use.”  Comments are due by 5 pm Eastern time, June 26, 2009.
• If your organization does not have an EHR system, consider options for EHR technology that fit within your organization’s structure and that will assist you in capturing data to meet evolving “meaningful use” requirements.
• If your organization already has an EHR, examine the systems and consider internal and external steps necessary to implement flexibility in capturing data required for an evolving definition of “meaningful use.”
• Obtain contractual commitments from EHR system vendors to assist you in achieving “meaningful use.”

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