MU Variabilities Spawn Confusion, Risk, and Legislation

The meaningful use program, though well-intentioned, is pretty much a morass of rules, exceptions, extensions and details so mind-numbing that it inflicts its own overhead on the program.

One EHR vendor has taken to calling this the "post-EHR" era. It's a silly bit of branding, for while it may be that CIOs have their eyes on how to use EHRs effectively, they are also living in a world where their EHRs, purchased with federal incentives, are also a source of constant irritation, and I am not just talking here about their primitive user interfaces.

Instead, I am speaking of the MU program, formerly known as the MU incentive program, but now more properly referred to as the MU compliance and penalty program. In response, CMS and perhaps soon Congress will recast MU as a compliance, penalty and flexibility program.

"It is really very, very confusing, and it just keeps getting more confusing," says Pam McNutt, founder of the policy committee of the College of Information Health Executives (CHIME), whose annual conference I attended two weeks ago in San Antonio.

Here is an abbreviated rundown on the various milestones, or millstones, currently in play in MU:

1. The Notice of Proposed Rulemaking (NPRM) for Stage 3 of MU is now expected to hit the Federal Register by the end of the first quarter of 2015, after having been delayed from its previous reported release date of the end of 2014.

This is the stage the program has to get to in order to bend the cost curve and provide better quality care by coordinating electronic medical records across all Americans and all health systems. At least, that was the original intention. But read on to discover why Stage 3 is the last thing on providers' minds right now.

2. As of October 1, 2014, almost 4,000 U.S. hospitals are scheduled to begin operating at Stage 2 of MU as the 2015 reporting year begins, according to McNutt, who is also senior vice president CIO of Methodist Health System in Dallas, Texas.

At least one major U.S. healthcare system, Intermountain, says it will miss the 2015 deadline and take "many millions" in penalties. Intermountain CIO Marc Probst told me in February that Intermountain would miss its 2014 reporting year attestations for Stage 1. At CHIME last month, Probst told me that Intermountain had actually managed to attest in the 2014 reporting year at the Stage 1 level for all but two of its 24 hospitals, and as a result, will receive a $35 million incentive payment.

However, 2015 is the year Intermountain switches from its own homegrown EHR software to Cerner's EHR software. For that reason, Intermountain will not be attesting for Stage 2 in 2015. Probst says the savings from switching to Cerner will improve Intermountain's provision of care in ways that will save substantially more money than any MU penalty for 2015.

3. For the other 3,928 hospitals, hopes are pinned on H.R. 5481, the Flexibility in Health IT Report Act, also known as "Flex-IT," legislation introduced in the House of Representatives in September with CHIME's active support.

As currently written, Flex-IT would permit those hospitals and other providers to attest for 2015 in a 90-day reporting period instead of the current 365 days. When Congress returns from the election break next week, CHIME intends to introduce a companion bill in the lame-duck Senate session.

Whether it can pass, or become part of a continuing resolution before the current Congress recesses for the holidays, is unknown. But read on to find out why something happening at the end of November will make a big difference in its prospects.

4. A spot survey of 350 CHIME members just before its annual conference found that a third of its members were confident they could meet the current 2015 attestation requirements, a third were unsure, and a third were doubtful, says CHIME director of public policy Jeff Smith. Smith also noted there is a smidge of wiggle room in starting the 2015 reporting year.

For instance, providers could actually launch their patient portals late in the 2015 fiscal year, and as long as more than 50% of those patients seen in that period have timely online access (within 4 days) and more than 5% of those view, download, or transmit such data to a third party, the provider will attest successfully, even though at the start of fiscal year 2015, the portal wasn't yet operational.

5. Now back to the end of November, which I mentioned above. As bad as last week's news was that less than 17 percent of hospitals are demonstrating MU Stage 2 capabilities, that statistic doesn't tell the story like the stats CMS will release at the beginning of December will.

That's because November 30 is the deadline to file attestations with CMS for the 2014 MU reporting year. "When we get to the end of November, that's the killer data," McNutt says. "Once we have the solid numbers, I think we'll have a lot of ammunition… if they couldn't make [Stage 2] July through September, what makes you think that they're ready for a whole year?"

CHIME president and CEO Russ Branzell says there's a chance that less than 50% of the hospitals who should have attested for any stage of MU in 2014 did so, and that less than 20% of those who should have done Stage 2 were actually able to do Stage 2. "What it means to me is, hospitals are going to have another hard time in 2015, because if you're a hospital who was supposed to do Stage 2, but didn't do it, then the lift to get there in 2015 is going to be higher and harder, and you're going to be at 365 days," he says.

Branzell adds that Congress could make Flex-IT retroactive to the beginning of fiscal year 2015, which would keep those thousands of hospitals from having to pay penalties which, unlike Intermountain's, may otherwise represent the difference between the systems making or losing money during that year.

6. Now let's talk about the penalties that loom closest. You may remember CMS's announcements earlier this year about providers filing for hardship exemptions to avoid 2015 penalties. As of May, 72 hospitals and 600 eligible providers had applied for meaningful use hardship exemptions, according to CMS. As has been reported sometimes sketchily in the media, these 2015 penalties are for failing to attest for MU Stage 1 in the 2013 reporting year. (The process of filing for hardship exemptions for the 2014 reporting year, to avoid 2016 penalties, haven't even begun yet.)

CMS previously had required the 2013 reporting year hardship exemptions to be applied for by April 1 for hospitals and July 1 for other eligible providers. Instead, now applications are due by this November 30. So even though many providers did attest in 2013, CMS is still reaching out to those who struggled unsuccessfully to attest that far back.

All in all, the MU program and the kind of flexibility described above, though well-intentioned, is pretty much a morass of rules, exceptions, extensions and details so mind-numbing that it inflicts its own overhead on the program. It is no wonder that the AMA has called for a halt to all MU penalties.

"Another thing that some people may be riding on, is that if you don't make it in 2015, and their penalty doesn't start until 2017, just like AMA has come riding in on their white horse on various other things, pressure from AHA and AMA when the penalties are actually scheduled to begin [will] stop them from occurring." McNutt says. "That's another way you could roll the dice and say, okay, well I'm gambling on something that's going to happen in two years."