Experts say proposed rule might be too ambitious
Healthcare industry leaders and their lobbyists have had a little more than a week to read and digest the massive new “meaningful use” proposed rule that the CMS released. Already several industry organizations have concluded that the CMS, which released the proposed rule Dec. 30, 2009, needs to dial down its lofty goals and complex criteria because, while many industry critics say the proposed stretch is well-intentioned, it is at the same time overly ambitious.
“The time frame that they’ve put forward and that all-or-nothing approach is really out of step with the way hospitals and physician offices implement health information technology,” said Don May, vice president for policy at the American Hospital Association. “Hopefully we’ll be able to provide some feedback that we’ll be able to provide some policy alternatives.”
The 556-page rule aims to do the bulk of the regulating of the federal electronic healthrecord subsidy program under the American Recovery and Reinvestment Act of 2009, also called the stimulus law. Under the law, hospitals, physicians and other healthcare providers will be eligible to receive billions of dollars in subsidies to purchase and operate EHR systems if they can demonstrate that they are using their computer systems in a “meaningful manner.” The latest estimate is that the bill will result in between $14.1 billion and $27.3 billion in spending (Jan. 4, p. 4).
The rulemakers at the CMS in their proposal clearly tried to follow the advice of their advisers in defining meaningful use, according to the rule. They also tried to reach a balance between ensuring that the huge govern-
ment investment in EHRs would go to buying tools to improve healthcare performance and being mindful not to set performance goals and measures so high that adoption of the EHR systems—even those subsidized as much as 85% of cost—would be impeded.
But May said federal officials spent too much time listening to the experts they brought onboard to advise them on drafting the meaningful-use criteria and not enough time querying providers in the field. “They did a lot of detailed work very quickly, and I think they’ve come up with a pretty good ideal system, but we don’t think it’s a starting system,” May said. “If you raise the bar so high and hospitals can’t hit that and they have no reason to do that, this rule may actually provide a disincentive for those hospitals that are on the wrong side of the digital divide.”
The CMS rule provides for the creation of three increasingly more stringent “stages” of meaningful-use criteria, with details of the first of the three stages covered by the new rule. The rule writers said they plan to detail the two subsequent stages with additional rules to be issued in 2011 to cover the payment years of 2012 and 2013, and reissued in 2013 to be applicable in payment years 2014 and 2015.
But even the just-released first-stage rules that cover the program startup in 2010 and 2011 may prove too big a step for many hospitals, May said. For example, he said one “meaningful use” criterion requires hospitals to measure and attest that 10% of all physician orders are entered into a computerized physician order-entry, or CPOE, system. The first problem, May said, is only about 30% of hospitals have some form of CPOE running in at least one department. Technically, CPOE is one of the highest-level clinical IT systems a hospital can install and typically is brought online last in an IT implementation. The AHA also has issues with the rule requiring hospitals to count how many CPOE orders it processes, he said.
According to a table in the CMS rule, there are 15 meaningful use measures of EHR functionality in the new rules that require hospitals to make such calculations, including CPOE use; physicians and other medical professionals have 17 such measures.
Robert Tennant, senior policy adviser for the Medical Group Management Association, also said the new rule, from the perspective of officebased physicians, was too ambitious. The CMS needs to keep two words in mind: “achievable and practical,” Tennant said. “I’m not convinced they’ve achieved that in the proposed rule.” For example, Tennant said, the CMS rule requires office-based physicians to produce 80% of their orders using CPOE. Elsewhere, the rule says physicians must furnish a patient with an electronic copy of his or her medical record within 48 hours of a request. “HIPAA gives providers up to 30 days to compile the records,” Tennant said. The 48-hour rule “looks to us to be overly burdensome,” he said. “When was the last time you went to your doctor and asked for an electronic copy of your record— probably never?”
Wes Rishel, a vice president and distinguished analyst for market research company Gartner, agreed that certain provisions might need to be dialed back a bit, but he defended the balance struck by the CMS rule writers and dismissed those industry complainants that suggest the CMS is asking for too much too soon. He says he sees their gripes, “more as political positioning than a deep analysis.”
Tennant: The 48-hour rule “looks to us to be overly burdensome.”