The 'faux' MU flexibility rule: A ghost no matter what

Not two weeks ago, I questioned whether the Centers for Medicare & Medicaid Services' and the Office of the National Coordinator for Health IT's continued rigidity in its stop gap "flexible" Meaningful Use rule for 2014 would come back to haunt the agencies.

Turns out I was right. Stakeholders are rebelling--and in a number of different ways.

First there's the direct onslaught. Seventeen major players--including but not limited to the American Hospital Association, the Healthcare Information and Management Systems Society, the College of Healthcare Information Management Executives and the Medical Group Management Association--have banded together, calling on U.S. Department of Health and Human Services Secretary Sylvia Mathews Burwell to step in and change the rule. They're urging her to take "immediate" action to shorten the 365-day reporting period for 2015, which for hospitals starts in just two weeks, warning that the full-year reporting is unrealistic and sets up hundreds of thousands of providers to failure.

But look at how they're doing it. They're no longer begging CMS and ONC. I gather they've concluded that doing so would fall on deaf ears. Instead they're asking Burwell, the new leader, to step in and overrule CMS and ONC's decision to be inflexible. Their letter alludes to this, stating that "we were surprised to learn that flexibilities meant to mitigate 2014 challenges did not also address program misalignment in 2015 and beyond."     


What's more, the stakeholders just got new ammo for their cause, with the introduction of a bill in Congress this week to shorten 2015 reporting period from 365 days to 90 days, thereby requiring the agencies to do what they refuse to do voluntarily.      

CMS and ONC look bad now, no matter how this plays out.

Then there's the "we'll go forward on our own" rebellion of the American Medical Association. It has taken matters into its own hands, issuing an eight-point framework to impose EHR usability. AMA is willing to work with the agencies, but will no longer wait for the agencies to do the job and require improvements. In a Sept. 16 webinar announcing the initiative, AMA President-Elect Steven Stack, M.D., noted that the Meaningful Use program was a "wonderful impetus" to spur EHR adoption, but said it now is too "rigid" and has become a barrier.

CMS and ONC have a tremendous amount of power, work very hard, and take their mission very seriously. But the truth is that the Meaningful Use program seems to be morphing into something rather different than what lawmakers first envisioned back in 2009. Stakeholders have become increasingly disillusioned and disenfranchised.

And the numbers don't lie. A scant 4 percent of eligible hospitals and 1.3 percent of eligible professionals have been able to attest to Stage 2 of Meaningful Use, thus far.

That does not bode well for the future of the program or the agencies' credibility and their ability to effect change. Backtracking on the 2015 certification was one thing; that was a voluntary experiment. But the repercussions on the inflexible flexibility rule, meant to be an olive branch of sorts, could have real long term effects.

Even if the agencies kill the 365-day requirement, its ghost may continue to haunt them. - Marla (@MarlaHirsch and @FierceHealthIT)