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Initiatives

Comment Letter to CMS on Proposed Changes to EHR Incentive Programs for 2014

July 15, 2014

Marilyn B. Tavenner
Administrator
Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attn: CMS-0052-P
P.O. Box 8013
Baltimore, MD 21244-1850

and

Karen B. DeSalvo, M.D., MPH, MSc
National Coordinator for Health Information Technology
Department of Health and Human Services
200 Independence Avenue, S.W.
Washington, DC 20201

Re: Medicare and Medicaid Programs; Modifications to the Medicare and Medicaid Electronic Health Record Incentive Programs for 2014; and Health Information Technology: Revisions to the Certified EHR Technology Definition

Dear Ms. Tavenner and Dr. DeSalvo:

On behalf of The Hospital & Healthsystem Association of Pennsylvania (HAP), which represents approximately 240 member institutions, including 125 stand-alone hospitals and another 120 hospitals that comprise 32 health systems across the state, we appreciate this opportunity to comment on the proposed changes to the requirements for the Medicare and Medicaid Electronic Health Records (EHR) Incentive Programs for 2014.

HAP greatly appreciates the increased flexibility the Centers for Medicare & Medicaid Services and Office of the National Coordinator for Health Information Technology (ONC) have proposed for eligible hospitals, critical access hospitals (CAH), and physicians and other eligible professionals (EP) in 2014.

The flexibility offered in the proposed rule would support continued adoption of EHRs; without it, many Pennsylvania providers are likely to conclude that they cannot meet meaningful use this year and abandon the program. That would be an unfortunate outcome for health care in the commonwealth, and unfair to providers, given that they would miss out on promised incentives despite their ongoing investments and be subject to future payment penalties for failure to meet meaningful use.

We strongly urge you to finalize, as quickly as possible, the proposal to expand providers’ choice of certified EHR technology (CEHRT) to be used in 2014. The proposed flexibility is much needed and would offer more choice in the specific meaningful use requirements they must meet in 2014 (Stage 1 or Stage 2).

However, HAP is concerned that the extremely late release of the proposed rule will limit its benefit to hospitals.

We also recommend that the agencies:

  • Provide greater flexibility in the electronic clinical quality measures reported
  • Clarify and simplify how the rule would be implemented
  • Recognize that 2015 also will be a transition year
  • Learn from Stage 2 before finalizing the start date for Stage 3
  • Verify that the specific proposed changes to regulatory text support the intended flexibility

Pennsylvania’s hospitals have invested tremendous financial and human resources to accelerate the widespread adoption and use of EHRs to improve health and health care to make them reality. Our hospitals also work every day to ensure privacy and security for patients and their health information. However, the complexity 2014 CEHRT criteria has limited the EHR  vendors’ ability to bring functional certified 2014 products to market in time for safe provider adoption.

Further, the scope of Stage 2 meaningful use requirements, especially those dependent on external players, have severely hampered our providers’ ability to meet Stage 2 requirements in FY 2014. According to data from CMS, as of mid-May 2014, fewer than 10 hospitals and 50 EPs had attested to Stage 2.

Again, HAP appreciates the flexibility afforded in the proposed rule and urges CMS and ONC to finalize the provisions on choice of the CEHRT used without any changes that would narrow the flexibility proposed. The late timing of the proposed rule poses significant risk and operational challenges to hospital leaders, who must make significant and consequential decisions about what actions to take to meet meaningful use during the last possible reporting period for FY 2014 (July–September 2014) without the certainty afforded by a final rule.

Indeed, HAP believes that hospitals should have more flexibility in the eCQMs they choose to report, regardless of the specific stage of meaningful use they meet. Specifically, hospitals using a combination of 2011 and 2014 Edition CEHRT should be able to report either set of eCQMs, regardless of the stage of meaningful use met.

HAP recommends that CMS remove the proposed limitation on providers’ ability to take advantage of the proposed flexibility. The proposed rule would limit the selection of an alternative approach to attesting in a manner consistent with the existing rules to hospitals that “could not fully implement 2014 Edition CEHRT to meet meaningful use for the duration of an EHR reporting period in 2014 due to delays in 2014 Edition CEHRT availability.”

HAP members have expressed considerable concern that this limitation creates uncertainty that could limit the benefit of the proposed flexibility. At a minimum, the agency should make clear in the final rule that many different scenarios could prevent a provider from fully implementing a 2014 Edition CEHRT, even beyond those specifically mentioned in the proposed rule.

The agency also should carefully instruct its meaningful use auditors that a full range of individual circumstances can be expected to qualify a provider for this flexibility, including some that may not be foreseen by our comments or agency staff.

The proposed rule states that, beginning in FY/CY 2015, all eligible hospitals and professionals will be required to use 2014 Edition CEHRT to report meaningful use, consistent with current rules. The reporting period would be 365 days for all providers, except the limited number in their first year of meaningful use, for whom the reporting period will be 90 days. Thus, the vast majority of hospitals will be expected to meet Stage 2 criteria no later than October 1, 2014.

HAP strongly recommends that CMS shorten the reporting period for 2015 to 90 days for all hospitals, CAHs and EPs. As acknowledged in the proposed rule, a central reason for the challenges being faced today is the requirement for a nation-wide, simultaneous upgrade to a new certification level for EHR technology.

The flexibility in 2014 is helpful, but in reality provides only three months of additional time for providers to get up and running with Stage 2 requirements using the 2014 Edition technology. It takes 19 months to efficiently and safely move from having the software to being able to attest to the next stage of meaningful use— assuming a three-month reporting period. Most hospitals received their 2014 Edition CEHRT in spring or summer 2014 (with some still waiting), and will need until summer 2015 to complete their transition.

We believe a 90-day reporting period would keep all providers moving forward to meet Stage 2, while giving them additional time to undertake the many workflow and other changes required by Stage 2. We prefer any continuous 90 days in the fiscal year to a period matching a fiscal year quarter because it allows more flexibility in when providers begin their reporting period. In addition, it allows vendors to better manage the large number of providers seeking support as they begin and end their reporting periods by spreading these dates over the year, and not bunching them into four specific days (the start and end of the fiscal quarter).

In addition, the Stage 2 rules are very challenging to meet, and while the proposed rule does not address the definition of Stage 2, we continue to believe that CMS should provide additional flexibility for Stage 2. Specifically, the rules make unwarranted assumptions about the level of information exchange that is possible by specifying “view, download, and transmit” and “transitions of care” requirements that are beyond the capacity of today’s exchange infrastructure. Hospitals are successfully using EHRs to improve the quality of patient care and reduce medical errors.

However, the rate of adoption has been less robust among other care settings—such as skilled nursing facilities and home health agencies—that are logical recipients of hospital data. Similarly, patients are just beginning to use tools, such as patient portals, that hospitals make available to allow direct, electronic access to their medical records, but the practice is not yet commonplace. While we continue to believe that the Stage 2 requirements that make hospitals’ success contingent on the actions of others should be removed, a 90-day reporting period in 2015 would at least afford hospitals more time to develop the relationships and information exchange structures to engage their external partners.

HAP insists that it is too soon to finalize the start date of Stage 3 as FY 2017 for hospitals, as proposed. Instead, CMS should specify that the 2014 Stage 1 and Stage 2 criteria will be effective until updated by future rulemaking. This approach is consistent with the policy CMS adopted in the 2010 Meaningful Use Final Rule, which made the Stage 1 criteria effective until updated by future rulemaking.

Rushing toward another aggressive deadline for Stage 3 could jeopardize program success. Furthermore, no one, including CMS and ONC, can judge readiness for providers to meet Stage 3 in the absence of the specific criteria that will be required. It would, therefore, be more appropriate to wait until the Stage 3 rules themselves are finalized to codify the start date in regulation. CMS and ONC should take the time to thoroughly evaluate experience under Stage 2 before moving on to Stage 3.

Finally, HAP requests that CMS carefully assess whether additional changes to the regulation text at Part 495 are needed to explicitly authorize the practical use of the full array of options discussed in the proposed rule. Following such an assessment, if the agency concludes that additional regulatory changes are not required, we ask that the final rule preamble explicitly acknowledge that this is the case and explain CMS’s rationale for this conclusion. Our goal is to ensure that eligible hospitals, CAHs, EPs and other stakeholders have a clear understanding of the options for meeting EHR meaningful use requirements in FY or CY 2014.

Thank you for the opportunity to provide comment on this important proposed rule. If you have any questions, please feel free to contact me at (717) 561-5344, or Martin Ciccocioppo, vice president, research, at (717) 561-5363.

Sincerely,

PAULA A. BUSSARD
Senior Vice President
 Policy and Regulatory Advocacy

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