CMS' hands off approach to MU and HIE in Medicaid managed care rule may backfire

Many people have been focused on what the Centers for Medicare & Medicaid Services' new sweeping Medicaid and CHIP managed care rule does. The long-awaited rule, unveiled earlier this week, overhauls and modernizes how Medicare managed care works, bringing much of it into the 21st century.

But I'm more focused on what the rule does not do. It fails to modernize and update Meaningful Use and health information exchange (HIE), despite pleas from commenters for CMS to do so.

Commenters asked CMS to provide guidance to states choosing to create incentive programs for providers not part of the Meaningful Use program. They asked that such programs leverage ONC certification criteria so that the same standards and methods of data would be used for both the state program and the Meaningful Use program.

CMS declined, saying only that states "would benefit" if they took ONC certification criteria for data exchange into account to support EHR systems that would be consistent with providers in the Meaningful Use program.

In the proposed rule, CMS encouraged states, managed care organizations and others to use HIE and certified EHR technology to create efficiencies, improve coordination of care and reduce unnecessary costs. CMS also "welcomed" comment on how to reinforce standards as EHR use increased. In response, commenters asked CMS to broaden the HITECH Act to include additional provider types to facilitate HIE and to modify the Meaningful Use program.

CMS said no dice; it didn't have the authority to add providers to the program or to change the program itself.

Commenters also asked CMS to include HIE adoption standards and requirements within states' managed care contracts, to require states to develop plans within managed care contracts to address connectivity, and to require the contracts to leverage ONC certification.

CMS demurred, saying, "[w]e do not believe it is appropriate for us to require or mandate this option, as states may have various options or paths to increase EHR and HIE adoption outside of their managed care contracts."

Additionally, commenters asked CMS to consider providing guidance on HIE, interoperability, national standards for health data exchange and clinical decision support to help states, providers and managed care plans.

CMS punted, saying it was willing, but not in this rule.  

CMS just wouldn't bite.

What gives? CMS certainly isn't shy about tacking health IT requirements onto other rules, pilot programs and demonstration projects. So why the hands off approach here?

Its position in this rule is also somewhat contradictory.

For instance, while it can't change the statute that created the Meaningful Use program--only Congress can do that--it can and has changed its rules implementing the statute several times. The rule doesn't specify what commenters want changed, but chances are they asked for the rules to be softened, such as the length of the reporting period or start of Phase III. CMS can do that.  

Or take certified EHR technology. CMS has required or encouraged providers to use certified EHR technology in a myriad of rules. It seems odd, then, that CMS would back off from that in this rule, which arguably has broader sweep than, say payment for end stage renal disease facilities.

Is CMS signaling that it's time for Congress to step up to the plate and update Meaningful Use since CMS' hands are tied? That it's time for the states to take more decisive action to align with what the federal government is doing? That future guidance should be sufficient for the industry?

Those approaches are OK, if they work. But if there aren't mandates and we end up with inconsistencies from state to state regarding EHRs and HIE, then interoperability--and by extension, coordination of care, population health and the cost of treatment--will be worse than ever. - Marla (@MarlaHirsch and @FierceHealthIT)

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