Can Meaningful Use Survive? Flex-IT 2 Bill Offers a Lifeline

Congress is pushing for a delay, and hospitals that can opt out of MU, are. But abandoning Meaningful Use would lead to problems with other healthcare regulations.

It is high time to consider whether the federal meaningful use program can survive.

Trouble signs are all around. But abandoning meaningful use at this juncture would lead to problems with other healthcare regulations.

From the AMDIS conference, I reported that children's hospitals are opting out of meaningful use stage 2 left and right, chiefly because there are no penalties for such organizations under CMS regulations.

Meanwhile, in Washington, D.C., elected officials continue to pound the table demanding to know where their $30 billion worth of seamless digital healthcare is, rather than the disjointed system of fractured digital care we currently have.

And finally, the American Medical Association, in a town hall on July 20, heard a torrent of complaints about EHRs. The low point had to have been the physician who wanted to return to paper.

On top of all this, the world continues to wait for CMS and ONC to drop the final rule for meaningful use stage 3. Last week, one member of Congress preemptively suggested a series of reforms for stage 3, which quickly won the endorsement of the College of Healthcare Information Management Executives (CHIME)—which I suspect had some role in helping write the legislation.

H.R. 3309, the Further Flexibility in HIT Reporting and Advancing Interoperability Act of 2015, or Flex-IT 2 Act for short, has five objectives:

1. Delay Stage 3 rule-making until at least 2017, either when the Merit Based Incentive Payment System (MIPS) final rules are released or at least 75% of doctors and hospitals are successful in meeting Stage 2 requirements
2. Harmonize reporting requirements (MU, PQRS, IQR) to remove duplicative measurement and streamline requirements from CMS
3. Institute a 90-day reporting period for each year, regardless of stage or program experience
4. Encourage interoperability among EHR systems
5. Expand hardship exemptions, as they are very narrowly defined under current regulations

Introduced by Rep. Renee Ellmers (R-North Carolina), Flex-IT 2 is so named because it is a successor to H.R. 5481, the original Flex-IT Act, introduced by Ellmers last fall. The legislation was effective at prodding CMS in January to announce it would introduce flexibility into the 2015 through 2017 meaningful use reporting years. And yet, as of today, that flexibility still has not been finalized, so last week CHIME also issued a call for CMS to hurry up.

"The additional time proposed by the modifications rule could help hundreds of thousands of providers meet meaningful use requirements in an effective and safe manner. However, we are just 61 days away from the end of the fiscal year, and the final quarter of 2015, yet hospitals and physicians are without the rules outlining the requirements for participation in the program this year," said Leslie Krigstein, interim vice president of public policy for CHIME, in a statement issued last Friday.

Meaningful Use + MIPS

Now here comes Flex-IT 2 to address the concerns enumerated above, and more. Krigstein tells me that the relationship between MIPS and meaningful use means that health IT stakeholders don't have much of an option other than to fix meaningful use, unless they want real chaos.

"The Merit Based Incentive Payment System (MIPS), which sets the new formula for physician Medicare reimbursement, includes meaningful use in its calculations, but the MIPS regulations have not been written" and no date for their release has been set, Krigstein tells me. Also, "there is confusion about how CMS will evaluate the meaningful use program changes and how the MIPS program and the MU program will be reconciled."

For instance, CMS has stated that 2019 will be the first year for MIPS. "Presumably, like meaningful use, there's a two-year look-back [for MIPS], or a year look-back, which means it would start in 2017 or 2018."

Thus, CHIME's call to press pause on stage 3 of meaningful use.

Another point both CHIME and AMA have gradually been making louder and louder: meaningful use attestation requirements are too inflexible. Krigstein also points out that MIPS scoring is expected to be on a sliding scale—25% of which will be derived from meaningful use compliance—and so it only makes sense that meaningful use adopt a sliding scale instead of the current all-or-nothing approach to penalties and what dwindling incentive payments remain.

"At this point, you would have a provider losing a full 25 points out of 100 if you are missing meaningful use by one patient, or if you fail your risk assessment," Krigstein says.

Also, if stage 3 is postponed, potentially as the MIPS rule kicks in, providers would only have to meet the stage 2 bar, instead of the much higher stage 3 bars.

It's worth remembering that EHR vendors have a ton of work to do to meet the stage 3 certification requirements. "You see a lot of the conversations about the APIs, and the new security, the compartmentalized approach to security with different modules meeting different levels of security, and all of the calls for incorporation of patient-generated data," Krigstein says. "I'm not a vendor, but I should anticipate it not being an easy lift."

The Cause for a Pause

Congress may be pivoting from its earlier table-pounding to lending a sympathetic ear. Sen. Lamar Alexander, chair of the Senate HELP Committee, which is currently holding a series of hearings on health IT, called for a stage 3 delay last month. "Especially as members head home for a recess, I would guess that we're going to start hearing that line of thinking from members of Congress more and more readily as the summer progresses," Krigstein says.

"What our CIOs and what physicians are saying is, 'We're trying, and we have the software, but we are just not able to do what CMS is asking us, because it just doesn't match the way we deliver care.' "

The risk is, if the rush to stage 3 isn't slowed, more and more healthcare providers will simply bail on the program or call for its elimination, following the lead of the children's hospitals.

"There was talk of a piece of legislation to be introduced last week that would eliminate the penalties, and that's not the right approach," Krigstein says. "Comprehensive reform is what we're looking at, and that's what we think this bill does."

One other note has to do with Flex-IT 2's expansion of hardship exemptions. The new proposed expansion would encompass providers who switch certified EHR products; provide an exemption for providers who experience a cyber-attack or other disruptive technology problems; and provide an exemption for certain physicians based on their specialty or if close to retirement.

All in all, Congress and policy makers should carefully consider these suggestions if they don't want to see meaningful use fall apart completely. And without a working meaningful use program, it seems unlikely we can leverage health IT to get to merit-based incentive payments. The issues are inextricably linked and demand immediate attention.