The Impact of the Supreme Court Decision on Health IT

Posted on: July 12, 2012

From my friends at BEI, a terrific piece articulating the impact of the recent Supreme Court decision on Health IT.  Thanks to Jonathan Krausner.

Supreme CourtAs we all know, the Supreme Court decided that the Affordable Care Act’s (ACA) Individual Mandate penalty is constitutional as a tax. On Medicaid expansion, the court upheld the expansion but with a critical caveat: The federal government may not threaten to take away funding from states that don’t comply.

Since the court largely left the Act intact, the provisions related to HIT survived as well. Everyone should note that the ACA and the HITECH act are different pieces of legislation, so that Meaningful Use would have survived regardless of the court’s ruling. But many people are surprised to learn that the ACA does use HIT as the basis to help achieve many of its goals. So it is instructive at this time to review how HIT is impacted by the ACA.

Integration of Physician Quality Reporting Initiative (PQRI) and Meaningful Use Reporting
One of the most significant HIT/EHR-related provisions in the ACA requires HHS of Department of Health and Human Services (HHS) to integrate the respective reporting mechanisms for the Physician Quality Reporting Initiative (PQRI) and the more recent electronic health record “meaningful use” incentives established by the Health Information Technology for Economic and Clinical Health Act (HITECH Act). HHS must develop a plan to integrate reporting on quality measures under PQRI with reporting requirements under the HITECH Act provisions pertaining to the meaningful use of EHR. Such integration must consist of the selection of measures, the reporting of which would demonstrate both meaningful use of EHR and quality of care furnished to an individual under PQRI.

Identification of Quality Measurement Gaps
HHS is required to identify gaps where no quality measures exist as well as existing quality measures that need improvement, updating, or expansion. In addition, HHS is tasked with awarding grants and contracts to eligible public and private entities for purposes of developing, improving, updating, or expanding quality measures. In awarding such grants and contracts, HHS must give priority to the development of quality measures that allow for the assessment of, among other things, the meaningful use of HIT.

Administrative Simplification
The ACA amends HIPAA to require HHS to promulgate operating rules regarding the standardization of transaction code sets. Among other things, the standards and associated operating rules must, to the extent feasible, enable determination of an individual’s eligibility and financial responsibility for specific services prior to or at the point of care. The standards may allow for the use of a machine-readable identification card.

Quality Reporting by Health Plans
HHS is required to develop reporting requirements for use by health plans addressing plan benefits and health care reimbursement structures that, among other goals, implement

activities to improve patient safety and reduce medical errors through the appropriate use of best clinical practices, evidence-based medicine, and HIT. Plans are required to submit annually to HHS, as well as to plan members, a report on whether the benefits under the plan include the specified elements.

In connection with the establishment of the health benefit exchanges required by the ACA, HHS is required to develop guidelines that require periodic reporting by participating health plans to the applicable exchange of quality-related activities. Such activities include improving patient safety and reducing medical errors through the appropriate use of best clinical practices, evidence-based medicine, and HIT.

Medicare Advantage Bonus Payments
Beginning in 2014, the ACA provides for performance bonuses for Medicare Advantage Plans that conduct one or more of certain specified types of programs such as HIT initiatives, including clinical decision support and other tools to facilitate data collection and ensure patient-centered appropriate care.

Health Homes
The ACA permits states to implement a state plan amendment providing medical assistance under the Medicaid program to eligible individuals with chronic conditions who will select a designated provider as that individual’s “health home.” States must include in the state plan amendment a proposal for use of HIT in providing services and improving service delivery and coordination across the care continuum, including the use of wireless patient technology to improve coordination and management of care and patient compliance with provider recommendations. In addition, when appropriate and feasible, a designated health home provider must use HIT in reporting to the state on applicable measures for determining the quality of the services rendered. The health home services to be provided pursuant to the state plan amendment must include the use of HIT to link the various services to be rendered.

National Strategy
The ACA requires HHS to establish a national strategy to improve the delivery of health care services, patient health outcomes, and population health. The strategic plan must include provisions for addressing, among other things, the incorporation of quality improvement and measurement in the Strategic Plan for HIT required by the American Recovery and Reinvestment Act of 2009.

Center for Medicare and Medicaid Innovation
The ACA provides for the establishment of a new Center for Medicare and Medicaid Innovation to test innovative payment and service delivery models. In selecting the models to be tested, HHS must include models that support care coordination for chronically ill individuals at high risk of hospitalization through a HIT-enabled provider network that includes care coordinators, a chronic disease registry, and home telehealth technology. Among the factors to be considered in selecting models for testing is whether the model utilizes technology such as EHR and patient-based remote monitoring systems.

Accountable Care Organizations
The ACA provides for the establishment of accountable care organizations (ACOs), which are groups of providers established to work together to manage and coordinate care for Medicare fee-for-service beneficiaries. ACOs that meet quality performance standards are eligible to receive payments for shared savings. In determining which organizations qualify for such shared savings, HHS must establish appropriate measures to assess the quality of care. These measures may incorporate reporting requirements and incentive payments related to the PQRI, including requirements and payments related to electronic prescribing, EHR, and other similar innovations.

Pilot Program for Integrated Care
The ACA provides for HHS to establish a pilot program for integrated care during an episode of care provided to applicable beneficiaries in connection with a hospitalization to improve the coordination, quality, and efficiency of care provided. HHS must develop quality measures for use in the pilot program and require each participating pilot site to report data on these quality measures on an annual basis. This reporting must, to the extent practicable, be performed through the use of a qualified EHR.

Independence at Home Demonstration Project
HHS is required to conduct a demonstration program to test payment incentive and service delivery models that use physician and nurse practitioner directed home-based primary care teams designed to reduce expenditures and improve health outcomes. In approving medical practices for participation in the program, HHS is required to give preference to practices that, among other things, have experience in furnishing health care services to beneficiaries at home and that use EHR and other HIT.

Community Health Teams
HHS must establish a program to provide grants to, or enter into contracts with, entities to establish community-based interdisciplinary, inter-professional teams, called “Health Teams, ” to support primary care practices within hospital service areas served by the entities. These Health Teams must demonstrate a capacity to implement and maintain HIT that meets the requirements of certified EHR technology.

Dissemination of Research Information
The Office of Communication and Knowledge Transfer at the Agency for Health Care Research and Quality (Office), in consultation with the National Institutes of Health, is required to broadly disseminate research findings relevant to comparative clinical effectiveness. The information generated will be disseminated to vendors of HIT as well as to health care providers, patients, and others. The Office, in consultation with relevant medical and clinical associations, must assist users of HIT focused on clinical decision support to promote the timely incorporation of these research findings into clinical practices and to promote the ease of use of such incorporation.

Enhancement of Long-Term Care Services
HHS is authorized to make grants to long-term care facilities for the purpose of assisting them in offsetting the costs related to procuring certified EHR technology. Funds provided under the grants may be used to purchase, lease, and install computer software and hardware, including handheld computer technologies. These funds also can be used to make improvements in existing computer software and hardware, to enable e-prescribing, and to provide education and training to eligible long-term care facility staff on the use of such technology. Further, HHS is required to adopt electronic standards for the exchange of clinical data by long-term care facilities.

Personalized Prevention Plan
Medicare plan beneficiaries will have access to health risk assessments based on guidelines developed by HHS. The assessments will identify chronic diseases, modifiable risk factors, and emergency or urgent health needs. The assessment could be provided through an interactive telephone- or Web-based program during an encounter with a health professional. HHS will set standards for the electronic tools that can be used to deliver the assessment. In carrying out the assessment, HHS will encourage the use of, integration with, and coordination of HIT, and may experiment with personalized technology to aid in the development of self-management skills and adherence to provider recommendations.

Centers of Excellence for Depression
HHS is required to award grants on a competitive basis to eligible entities to establish national Centers of Excellence for Depression. Each center will collaborate with other centers in the network. The centers shall use EHR and telehealth technology to better coordinate and manage and improve access to care.


As the foregoing examples illustrate, the use of EHR and other kinds of HIT is integral to many of the health reform initiatives established by the ACA, especially initiatives related to quality measurement and new delivery models. Some of the new programs established by the ACA include the effective use of HIT as a qualifying factor for participation and, directly or indirectly, provide financial rewards for such use. These provisions complement the meaningful use incentives of the HITECH Act and provide additional reasons for providers and plans to make sure they are well on the way to implementing EHR programs that meet the meaningful use requirements.

This article was largely taken from information provided by Foley and Lardner LLP, a law firm with offices throughout the US and across the globe. The firm has an industry team devoted to Electronic Health Records and Health Care. Please contact Michael Scarano at for further information.

Jonathan Krasner |
703-528-8300×105 |