MU Industry Reaction: A Stage 3 Final Rule That May Not be So Final

Oct. 7, 2015
Yesterday, CMS released what it calls final rules for both meaningful use Stage 2 modifications and Stage 3. But while the Stage 2 modifications truly are final, some in the industry are wondering if Stage 3 changes could still be on the horizon.

Late yesterday afternoon, the Centers for Medicare & Medicaid Services (CMS) released what it calls final rules for both meaningful use Stage 2 modifications and Stage 3. But while the Stage 2 modifications truly are final, some in the industry are wondering if Stage 3 changes could still be on the horizon.

As HCI reported yesterday evening, various health IT leaders showed initial optimism in the flexibilities to the program provided by CMS; however, these same people—some industry associations, some folks gathered in Chicago for the Health IT Summit in Chicago, sponsored by the Institute for Health Technology Transformation (iHT2, a sister organization to Healthcare Informatics)—proceeded with caution, wanting to read the rules in full detail before offering more comment. One noteworthy thought that came up a few times was the fact that CMS announced a 60-day public comment period to facilitate additional feedback about Stage 3 of the EHR Incentive Programs going forward, in particular with regards to the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) that requires the establishment of a Merit-based Incentive Payment System (MIPS) and consolidates certain aspects of a number of quality measurement and federal incentive programs for Medicare physicians and other providers into one more efficient framework.

Indeed, as HCI continued to garner more feedback on the EHR Incentive Program final rules, the added comment period continued to be a point of conversation. For one, Naomi Levinthal, consultant, research and insights at The Advisory Board Company (Washington D.C.), says that the fact that Stage 3 is not set in stone could signal some sort of response from CMS about all of the feedback they have been getting from the industry and from lawmakers about providers’ desire to delay the start date of Stage 3. “They essentially said they will continue on with the proposal of Stage 3, with everything starting in 2018, but they said finalized with air quotes, which allows providers to have another 60-day comment period. This significantly reflects a move on CMS’s part to continue the conversation and not have things set in stone,” Levinthal says.

Naomi Levinthal

Similarly, John Halamka, health IT luminary and the CIO for the Boston-based Beth Israel Deaconess Medical Center, wrote in his blog yesterday that “It remains to be seen how the comment period on the EHR Incentive Programs final rule will be used to align the meaningful use program  with the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) effort.   It would not surprise me that the CMS final rules are not really final.”

Leslie Kriegstein, interim vice president of public policy, at the Ann Arbor, Mich.-based College of Healthcare Information Management Executives (CHIME), agrees with the sentiment that the recent calls for a Stage 3 delay could have been the driver for the added comment period.” Sen. Lamar Alexander and 116 members of the House exerted their oversight. He very clearly stated ‘we will fight you on this if you don’t do this yourself,’” Kriegstrin says. “You are seeing the provider community in lockstep in ways that are not traditional with sincere concern about timeframes and existing technology capabilities. Given that rules were so far along when we all discovered that Stage 3 was coming sooner than we had anticipated, that’s as far as CMS could go in terms of reopening the conversation,” she says.

Indeed, CMS was certainly facing harsh criticism on the Hill. More than once in the past several months, Sen. Alexander (R-TN) has called for a delay to the start of Stage 3 until Jan. 1, 2017, citing physicians and doctors who he has spoken to that are literally "terrified" on the next implementation stage of electronic health records. Following the release of the regulations yesterday evening, Alexander, not surprisingly, was dissatisfied. He released a statement saying, “The administration has a tin ear. We asked: ‘Why spend a year modifying rushed up mistakes? Why not spend a year getting it right in the first place?’ They listened but they did not hear. They’ve missed a golden opportunity to develop bipartisan support in Congress and throughout the country for an electronic health records system that would genuinely help patients. Instead, they’ve rushed ahead with a rule against the advice of some of the nation’s leading medical institutions and physicians.” He added, “Congress will carefully review this rule and has the option of fixing it through legislation or overturning it through the Congressional Review Act.”

Nonetheless, despite the added 60-day comment period, Kriegstein isn’t overly optimistic that anything significant will actually change. “I want to say that things will change and I want to say that CMS is feeling the pressure and has heard the provider community to make this program work, but I don’t know,” she says. Specifically, Kriegstein says she is disappointed that CMS didn’t back off its proposal that 2018 is the effective Stage 3 year for all providers, with 2017 being optional. “We were hoping that would be changed. They really didn’t change anything beyond the two rules becoming one regulation. It’s troublesome they took that long to put it out without making any real changes. It also took OMB a month to finally get it to all of us,” she says. For many standards that are immature, Kriegstein says that CMS “didn’t meet us in the middle.” Frankly, she notes, regarding the added comment period, “I don’t know how much is up for discussion.”

Jason Fortin, senior advisor at Impact Advisors, adds that Congress could still do something in the 21st Century Cures bill,  and notes that CMS may not have been able to make changes after a certain point due to timeframes being set in stone and ironed out long in advance. “There is a long process for these things,” he says. “The roles and timing is kind of set already, but to me, there was no reason why the proposed rule couldn’t have been published earlier. None of what they are trying to address is new, in regards to patient engagement and transitions of care,” he says.

Levinthal, however, thinks that some modifications could be in store due to the extra comment period. “This could signal them making some modifications to Stage 3,” she says. “You might see a middle ground in order to onboard providers to these more aggressive measures. It sounds like they heard loud and clear that some of these measures were way too high as proposed. It’s unusual in that CMS really has never caved to the type of pressures that industry and lawmakers have put on them before. Think back to 2014, we had the same type of requests to delay Stage 2, and they went forward with it with just quick modifications to let some providers meet meaningful use in a different way,” she says.

Uncertainly Remains

Kriegstein further notes that the MIPS request for information (RFI) is open for comment now too, which “speaks to how convoluted all of this is.” In MIPS, she says, “they talk about all-or-nothing and flexibilities, yet when we are responding to Stage 3, we clearly won’t know the outcomes of the RFI. If they will make those flexibilities, will it only be for physicians, or will they be offered to hospitals too? That will have a big impact on what we have to say. There is still this cloud of uncertainty,” she says.

Leslie Kriegstein

As such, Kriegstein says it’s tough to know how sincere CMS is in rethinking the meaningful use program. “We want a complete overhaul of the program, focusing on interoperability and security,” she says. “CIOs have pointed to that for a while. What are other ways we can show that we are meaningfully using health IT that isn’t the ‘checking the box’ mentality of meaningful use? How else can we tangibly show outcomes? As constructed, this program doesn’t really get to outcome measures and impacts that we think it has the potential to do,” she says.

That being said, David C. Kibbe, M.D., president and CEO of DirectTrust, wrote in a prepared statement that he is pleased with CMS’ commitment to interoperability in the final regulations. He said, “No one likes having the regulatory equivalent of War and Peace dropped in their laps in the middle of a busy week, but you have to hand it to CMS for finally—finally—focusing meaningful use on interoperable secure exchange, security, and simplified quality reporting.  No one is going to be completely happy with the new rules for 2015-2018, but in my necessarily cursory overview there is significant change that will be liked by many….More than half of the objectives in Stage 3 starting in 2017 require EHRs to have interoperable exchange technology that is encrypted and offered to relying parties with strong identity assurance.”

Regarding specific thresholds, Kriegstein says that the idea of requiring providers to have 25 percent of their patients view, download, or transmit (VDT) their health information in Stage 3, by 2018, is completely unattainable. “I am certain of that,” she attests. “We hoped that this measure would change, as we have seen how hard it is and how CIOs and hospitals have pulled away from patient care to focus on VDT.” Kriegstein recalls one CIO who told her his hospital was hovering between 3 and 4 percent of patients VDT their data all year, with the requirement in place being 5 percent. “They literally pulled nurses off the beside, pulled receptionists and pulled concierges to make phone calls, and to get where was needed for patients to sign up for the portal. They made a push to get to that 5 percent number,” she says. “There is no doubt that this measure has been nearly impossible for most of our members. It’s beyond comprehension that we will be at a place in just a few years where 25 percent will be obtainable by anyone. It makes me think, what are they doing?”

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