Mean­ing­ful ob­tuse?

Ex­perts say pro­posed rule might be too am­bi­tious

Modern Healthcare - - The Week In Healthcare - Joseph Conn

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.”

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