The looming policy struggle for Meaningful Use

Posted on August 9, 2012 by Robert Rowley

The federal EHR Incentive Program (Meaningful Use) is based on the presumption that once a medical practitioner has adopted an Electronic Health Record (EHR) system, that system will remain in use for subsequent years.

More specifically, the presumption is that once a clinician attests to Meaningful Use (the first year of attestation only needs a 90-day reporting period), then subsequent years will, of course, follow (each subsequent year needs a full year reporting period). But what if that’s not true?

In 2011, we have seen that, when one compares the numbers of successful attestations (Medicare, ambulatory attestations) to the number of enrollees, there was about a 39% success rate. In other words, about 61% of those who enrolled did not successfully achieve the 15 obligatory requirements, plus 5-of-10 menu requirements by the 2011 year end.

“Near misses” – workflow challenges
There isn’t publicly available data on how many of those who enrolled but were not successful attesters were “near misses” and how many simply were overwhelmed and were unable to extract the needed data from their EHR system in order to attest. A “near miss” might be something like this: If 80% of the patients seen during the reporting period needed to have medication allergies documented in their charts (or a specific “no known allergies” documented), and a physician only had 78%, then that physician would not qualify for Meaningful Use that year. That is a “near miss,” and that data is not collected (or collectible) by CMS.

Let’s say that a physician made a concerted effort in the 90 day first-year reporting period, and was a successful attester. But the subsequent year, their full-year achievement fell just below a threshold on one of the core criteria (a “near miss”), and therefore for the second year the clinician missed demonstrating successful Meaningful Use.

It is quite possible that, as this program rolls out, many well-intentioned clinicians will have “skip areas” where they fell below a particular core threshold, and it would appear that there are gaps in their Meaningful Use.

That is one of the basic, “background” issues. It represents the in-practice workflow changes that are needed for (and encouraged by) Meaningful Use.

Cost vs. reward
A compounding issue is that, with each year in the program, the bonus payouts diminish. This is specified in the 2009 ARRA legislation that created the HITECH program in the first place.

Overlay onto that the fact that, as the program rolls out, an escalating Stage of Meaningful Use applies – the current Stage 1 applies for the first 2 years (or 3, if you started in 2011), but more-rigorous Stage 2 and subsequent Stage 3 are the criteria to be used for subsequent years – years when the incentive payment is vanishing.

Each Stage of Meaningful Use requires the implementation of an EHR system that is Certified for that Stage – so, with the upcoming Stage 2 Meaningful Use criteria in the last steps of finalization, there are accompanying Stage 2 Certification criteria that specifies to vendors what things they need to build.

Translate that into cost. It is true that many physicians are using web-based EHR products that are free (ad-supported); yet many are not. And with each stage, it is basically a guarantee that the vendors will charge upgrade fees that clinicians will need to pay in order to have the required Stage-certified product needed to attest – and receive a vanishing incentive payment for that effort.

At some point, many reasonable physicians will throw their hands in the air and say “it’s not worth it.” Even if they have, in fact, adopted and are using an EHR (which was the intent of the program in the first place), and have modified their workflows to avoid the “near miss” issues encountered during the first few years, the upgrade costs compared to the incentive payments may not make sense.

Penalty phase
The Meaningful Use program not only has an incentive phase (diminishing as it is), but it also has a penalty phase.

As stated in CMS documentation, “For 2015 and later, Medicare eligible professionals, eligible hospitals, and CAHs that do not successfully demonstrate meaningful use will have a payment adjustment in their Medicare reimbursement” – this will be 1% reduction in all Medicare payments, climbing with each year of non-compliance to a maximum of 5%.

So there are teeth in the program. And, in fact, the requirements for demonstration in this only-negative (and no incentive positives) phase of the program rapidly escalate to Stage 3 criteria (see table above).

Policy challenges ahead
There is not yet much uproar about this, as it seems far off and other issues are more pressing – like adopting an EHR system in the first place (most physicians have now done so) and getting incentive money while it is still available.

But several questions have not been thoroughly addressed, and will need better clarification from CMS. The next few years of experience will have an impact that is difficult to foresee from the current vantage point. Some questions that come to mind are:

• If there is discontinuous attestation in the program (successful in 2011, but a “near miss” in 2012, etc.), will penalties apply? Or are penalties only applicable to the previous year’s attestation after 2015 (regardless of whether some prior years might have failed)? It would seem that the latter is true.
• If a successful attester in 2011 through 2014 fails to successfully attest in 2015 (a “near miss”), do the penalties kick in? What if 2016 is successful – which stage applies? If 2017 fails, is this a 1% or a 2% penalty? Or none, since this physician has been a successful attester during some of the preceeding years?
• The whole purpose of the EHR Incentive Program is to get physicians off paper and onto an electronic platform. Many physicians may achieve that, but fail to demonstrate the program-year-associated Stage of Meaningful Use. Should there be a pathway to exemption from penalties, since they have honestly tried to comply?

We will see, as years play out, how successful attestation is (what percentage of those enrolled in the program are able to successfully attest). Input from vendors that are able to measure the “near misses” on each of the Meaningful Use criteria will help shape policy as well, and publication of such data will be helpful.

As has been true with many government programs that have a penalty phase, when that penalty deadline looms, there is lots of policy activity and discussion about this. No doubt, Meaningful Use will have a similar story, particularly as the penalty phase approaches. It is impossible to imagine what those scenarios will look like from the present-day vantage point, as there are too many unknowns – what percentage of the health care industry has adopted an electronic platform (the intended goal in the first place); how difficult is it from vendors to upgrade to Stage 2 and Stage 3 (and beyond) products; how interconnected will the health care ecosystem be? All of these questions, and more, will shape the inevitable debate to come.

Tags: ambulatory EHR, Meaningful Use, penalties, physician attestation

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