How to best fix an outdated MU law?

Changes in an industry often advance faster than the law. This is often the case in healthcare, where clinical, policy or other developments evolve and applicable law, either not yet enacted or now outdated, struggles to keep up. The result: confusion, inconsistency, mistakes and litigation. Just think of the lack of regulation of EHR scribes or the Stark self-referral law.

The laws are behind the times.

This conundrum is particularly acute in health IT, as several experts at the American Bar Association Health Law Section's annual Washington Health Law Summit, held this week in Washington, D.C., pointed out.

For example, electronic health records and data analytics are integral to the move to value-based care and payment reform. But the Meaningful Use rules, which govern EHRs, don't match up with these goals.   

As speaker Kelly Cronin, director of ONC's Office of Care Coordination, put it, a "different infrastructure" that depends on data longitudinally from EHR to EHR is needed for payment reform. Attorney Sidney Welch, with Kilpatrick Townsend & Stockton, also questioned how to reconcile the data sources and move past the EHR as mere data repository.

Although those two speakers didn't outright blame the Meaningful Use program, others in the industry have, warning that Meaningful Use is hampering payment reform and interoperability.

Another example is telemedicine. According to Robert Jarrin, senior director of government relations for telecommunications firm Qualcomm Inc., ONC has been "myopically focused" on EHRs to the detriment of the type of care coordination that telemedicine can provide.

While telemedicine could be helpful in meeting some of the measures of Meaningful Use Stage 3, providers run up against another legal roadblock: state and federal laws that restrict the ability to use telemedicine and/or limit reimbursement. That's quite a disincentive if the provider has to jump through hoops just to offer telemedicine and then can't get paid for it.

There's also the practical problem of offering telemedicine: EHR vendors have been so focused on meeting the Meaningful Use requirements that they haven't integrated telehealth into their EHR products, attorney Nathaniel Lacktman, with Foley and Lardner, said at the event.

The truth is that the law is typically reactionary, and then needs to be honed by case law and amendment as the world marches on. And in the sphere of EHRs and health IT, the changes are particularly fast spaced.

The good news is that usually the government takes steps to rectify the gap and enact laws to address the changes. For instance, there are about 50 federal bills pending addressing telemedicine, Jarrin noted.  

The bad news is it's not yet known which bill or bills will adequately address the changes in the law. Which of those 50 bills best fit?

That's part of the problem with the Meaningful Use program. It seems outdated. What was paramount back in 2009 when the American Recovery and Reinvestment Act created it is different now. The technology and the needs of the industry have changed.

But what now? What direction should we go in, and how do we know if it's the right one?

At least there's the opportunity for the public to shape the rule implementing Stage 3 of the program. Comments are being accepted through l Dec. 15. If you have suggestions on how to update, amend and improve the program, now's the time to weigh in.

- Marla (@MarlaHirsch and @FierceHealthIT)

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