Meaningful Use flexibility rule may have an unintended impact on CMS

Providers have been expressing their disappointment that the final Meaningful Use flexibility rule, released Aug. 29, saying it offers scant relief, is "too little too late" and puts the very future of the program "in question."

Note that no one, so far, has expressed surprise. And they shouldn't. The final rule stuck to the script of the proposed rule despite requests that go farther. It changes the Meaningful Use timeline for 2014 and allows options for electronic health record reporting in 2014, extends Stage 2 through 2016 and pushes back the start date of Stage 3. It also clarifies when the hardship exemption would apply.

But it didn't address suggested changes to Stage 3, which the Centers for Medicare & Medicaid Services and the Office of the National Coordinator for Health IT plan to cover in a different rule. Nor did the flexibility rule shorten the reporting period in 2015 since, according to CMS and ONC, that option was not in the proposed rule and "would put the forward progress of the program at risk and cause further delay in implementing effective health IT infrastructure."

As of July, only 795 eligible professionals and six eligible hospitals have successfully attested and earned payments for Stage 2 of Meaningful Use.

It may be premature to predict whether the final flexibility rule will have the impact CMS and ONC intended and help providers who are struggling to attest in 2014.   

The bigger issue is whether the rule will have unintended consequences in 2015 when the penalty phase of the Meaningful Use program kicks in. Will providers truly abandon the program, as some of them have warned?

And will that have unintended consequences on the agencies? What will the fallout be?

CMS and ONC have been transparent in their approach to the Meaningful Use program and the flexibility rule. It's just a stepping stone.

"The actions involved in meeting the objectives and measures of Meaningful Use are not simply part of a reporting program, they are also based on changing behaviors and setting standards that drive toward improved clinical process and better outcomes for patients," the rule states. 

It's just that this program as currently structured--or as the agencies are implementing it--may no longer be the best way to do it.

Have CMS and ONC unintentionally set themselves for failure? Will CMS and ONC need to take additional steps to try to salvage the program? And if so, will the changes be "meaningful," or just another band aid, like the 2015 EHR voluntary certification criteria?

Or, will it inadvertently ramp down earlier than planned because people will begin to lose faith; will providers continue to go along with the program or begin to rebel?

We've been given two clues. First, let's remember Medical Group Management Association's assertion in its comments to the proposed flexibility rule that the agencies have overstepped their regulatory authority and have gone "well beyond the legislative intent."

Second, look at the other development of Aug. 29, the one that's getting no publicity. CMS announced that it has created a temporary program to settle pending claims mired in the backlog of administrative appeals. This is a huge issue. Thousands of claims amounting to millions of dollars are at stake here. CMS doesn't explain why it's taking this step, except that there's been an "unprecedented" number of claims appeals filed.

Could it possibly be due to the lawsuit filed by the American Hospital Association and several hospitals in May challenging CMS' "unlawful" delay in adjudicating claims appeals and requesting legal relief? Will providers, believing that the only way to rein in an overreaching CMS, file a lawsuit to obtain legal relief from the Meaningful Use program?

The Meaningful Use flexibility rule may be short term help to some providers, but if in the long term it turns them off completely, that will make the program less important. And then CMS and ONC will lose the opportunity to meet their goals and spearhead the changes they believe are most needed, not to mention the ripple effect, such as the problem of aligning reporting requirements, and increased scrutiny by Congress and others--not to mention the specter of a lawsuit.

CMS and ONC may have been following the playbook with this flexibility rule. But the unintended impact on them may be bigger than they realized. - Marla (@MarlaHirsch and @FierceHealthIT)

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