Guest post by James Hofert, Roy Bossen, Linnea Schramm and Michael Dowell of Hinshaw & Culbertson.
In 2013, healthcare industry stakeholders, including associations, EHR vendors, practitioners and providers, raised significant concerns relating to the implementation timing of meaningful use Stage 2 and 3 criteria, including problems with interoperability, usability and regulatory failure to assess “value added” by implementation of meaningful use criteria to date. On December 6, 2013, federal officials announced that Centers for Medicare and Medicaid Services (“CMS”) were proposing a new timeline for the implementation of meaningful use stage criteria for the Medicare and Medicaid Electronic Health Record (“EHR”) incentive programs. The Office of the National Coordinator for Health Information Technology (“ONC”) further proposed a more regular approach for the update of ONC’s certification regulations.
Under the revised timeline, Stage 2 will be extended through 2016 and Stage 3 will begin in 2017 for those providers had completed at least two years in Stage 2. The goal of the proposed changes is twofold; to allow CMS and ONC to focus efforts on the successful implementation of the enhanced patient engagement, interoperability and health information exchange requirements in Stage 2, as well as evaluate data from Stage 1 and Stage 2 compliance, to date, to create and form policy decisions for Stage 3.
Roy Bossen
CMS expects to release proposed rulemaking for Stage 3 in the fall of 2014, which may further define this proposed new timeline. Stage 3 final rules would follow in the first half of 2015.
Despite CMS’s positive response to stakeholders concerns relating to the timeline for implementation of Stage 2 and Stage 3 meaningful use criteria, significant reservations continue to be enunciated, on a monthly basis, by providers at both Health information technology (“HIT”) policy committee and work group meetings. Providers continue to urge rule makers to institute consensus standards that could be adopted broadly across the healthcare industry to ensure both usability and interoperability.
In early 2013, former national coordinate Farzad Mostashar chastised electronic health record vendors for improper behavior in the marketing and sales of systems that continued to frustrate interoperability goals. This frustration with EHR vendors continues to be enunciated in HIT policy committee and work group meetings as recently as January of 2014.
The Centers for Medicare & Medicaid Services announces a delay of meaningful use, and on Dec. 6, 2013, proposed an extension of Stage 2 through 2016 and beginning Stage 3 in 2017 for those providers that have competed at least two years in Stage 2.
In a post on its site, Robert Tagalicod, CMS’ director of Office of E-Health Standards and Services and Jacob Reider, MD, acting national coordinator for Health Information Technology of ONC, the goal of the change is two-fold: “First, to allow CMS and ONC to focus efforts on the successful implementation of the enhanced patient engagement, interoperability and health information exchange requirements in Stage 2; and second, to utilize data from Stage 2 participation to inform policy decisions for Stage 3.
“The phased approach to program participation helps providers move from creating information in Stage 1, to exchanging health information in Stage 2, to focusing on improved outcomes in Stage 3. This approach has allowed us to support an aggressive yet smart transition for providers.”
The two also point out that the timeline allows for enhanced program analysis of Stage 2 data to inform to the improvements in care delivery outcomes in Stage 3, the primary goal of the extension, to give all involved more time to prepare for the future of the reform.
The fact that mandatory Stage 2 patient engagement is considered one of the largest meaningful use hurdles should come as a surprise to no one. If it is, that’s somewhat similar to saying that the day before a presidential election you still haven’t decided who you are going to vote for.
I think at this point it’s pretty short sighted to disregard this fact. Healthcare reform does not (yet) reform patients; it’s still a set of mandates for those in the field, practicing in the field and drawing money from the system.
Meaningful use is meaningless as far as patients are concerned. In almost every case they don’t know what it is nor do they care. They’ll only care when one of two things happen. You can take this to the bank: 1.) they are forced to pay or contribute financially in some way or 2.) you take away their right to care (in other words, you mandate them to do something in some way.)
I speak from experience gained from my time leading communication programs for a mandated statewide health insurance program.
If we want to hold patients responsible for their health outcomes, we need to either take away their right in some regard or tax them for their behavior. This is also commonly known as a sin tax. You smoke and you pay the tax on cigarettes.
I’m being a bit overly dramatic on purpose and I don’t recommend either of the two points above, but we should be fully aware that putting meaningful use in the hands of the patients are going to produce disappointing results for every physician and practice hoping to achieve Stage 2.
Just because a practice implements a patient portal doesn’t mean patients will use it. I have used my doctor’s patient portal. Even as a technology enthusiast and healthcare writer, I don’t particularly find it fun to use nor do I find it really helps me engage with my physician. Sure, I can send some emails and pay some bills through it, but that’s just the case. To me, it’s more of a bill pay system and I’m sure I’m not alone here. How many of you enjoy using your credit card company’s online bill pay system?
The only good news on this front is that Centers for Medicare and Medicaid Services might have finally figured this out and may allow for an exception to the ill-conceived requirement, despite Kathleen Sebelius’ insistence that a measure of patient engagement be included in the Stage 2 requirement.
But, I’m not holding my breath that what’s best for physicians in regard to meaningful use attestation will be upheld, though, when the only response to physician frustration over the requirement because patients are not showing any interest is for physicians to “push” their users to use it.
In principal, that response is a lot like breaking a toothless law. Sure a law is on the books, and you broke it, but there’s nothing that you can do about it.
And, as anyone who works in communications understands, push communications only goes so far in the 21st century and not nearly as far as it may have 15 or 20 years ago.
Push and pull; now that’s the kind of conversations that engage. You give, you take; you speak, you listen.
Anything else is nothing but mandatory arrogance from political forces far from the field of actual care.
As you know, the Centers for Medicare & Medicaid Services (CMS) issued final requirements for meaningful use stage 2 on August 23. Since then, it’s clearly been one of the most discussed topics in healthcare technology circles, perhaps this site aside.
While the dust finally settles, the nuances of the regulation are being turned over and devoured. Providers and practice leaders are examining the 17 core (required) measures and wondering which of the three menu items will allow them the clearest path to overcome the hurdles of stage 2.
Successfully meeting the meaningful use measures aside, for me the meaningful use exceptions for noncompliance are what stand out here.
Let’s have a look.
CMS established hardship exceptions to the penalties practices and providers will face for noncompliance of meaningful use. Exemptions are available for physicians who:
Have insufficient Internet access for any 90-day continuous period between Jan. 1, 2013, and July 1, 2014.
Are new to Medicare.
Encounter extreme circumstances outside the physicians’ control, such as practices closing, natural disasters, EHR vendors going out of business and similar scenarios.
Practice in multiple locations and have a lack of control over the availability of EHR systems.
Have a lack of face-to-face visits or other patient interactions, or the need to provide follow-up care.
I’d love to know your favorite exception. Feel free to let me know in the comment section below. What caught my eye, though, is the third exception. Specifically: “EHR vendors going out of business.”
Perhaps I’m giving this single point more importance than it deserves, but I find this to be wonderful foresight on the part of CMS. Kind of like the nation’s forefathers providing exceptions to the success of the United States; a caveat to hedge against the Constitution’ failure.
Here, tucked in with acts of God and insufficient Internet access, CMS ensures that physicians need not worry about their EHR vendor putting plywood over the windows in the middle of your attestation process.
Clearly, contraction in the vendor market is going to happen. It’s a matter of time. Those of us in the vendor space have speculated on this very fact for several years. Analysts have provided their opinions and they agree, as do my counterparts.
Perhaps the next year won’t bring a dramatic change to the EHR vendor landscape, but we all know it is coming. The fact is, there’s just not enough physicians and care providers to support between 400 and 600 vendors.
Stage 2 is most likely going to prove too complex for many of the smaller shops. Those without a tool that’s robust enough to make the meaningful use push or companies without a sizable enough footprint to be an attractive acquisition target are going to fold. Their clients may expect them to weather the storm, but a ship without a sail is nothing more than a lost vessel without direction.
So, with all the other exceptions that can cause a set back, and given the level of commitment required to meet stage 2, the easiest exception to avoid may in fact be making a vendor switch now. Given the set backs a vendor collapse could cause your practice, I might prefer taking my chances with an act of God because at least I might be able to pray my way out of it.