Meaningful Use flexibility rule may open the door to bigger changes

The Centers for Medicare & Medicaid Services and the Office of the National Coordinator for Health IT's proposed rule offering some flexibility for attesting to Meaningful Use in 2014 may be one of the few occasions where a rule relating to the program has been met with open arms.

The rule, which relaxes the reporting requirements for providers struggling to transition to the 2014 edition of certified electronic health record technology, affords some breathing room and needed relief.

The rule garnered a considerable amount of attention, receiving a whopping 1,119 comments before the comment period closed July 21. A quick look indicates several common themes in the 1,119 comments. Commenters generally supported the rule, sometimes reporting their personal struggles with attestation. Several other common recommendations included:

  • Finalize the rule quickly without making a lot of changes since providers are running out of time
  • Extend the application period for the hardship extension, especially since that deadline passed three weeks before comments were due on the proposed rule
  • Broaden the circumstances under which providers would be seen as not able to fully implement 2014 criteria, including those that CMS and providers haven't yet anticipated 
  • Tell the auditor hounds to back off   

Some stakeholders went further and used the opportunity to attempt to modify the Meaningful Use program, asking for additional flexibility into 2015 and changes to the program itself.

A deeper dive reveals a detail that I find particularly interesting: the Medical Group Management Association's suggestion that CMS has overstepped its regulatory authority in Stage 2 of the Meaningful Use program and that the "growing government overreach" has provided a regulatory environment "clearly contrary" to the intent of the original statute creating the Meaningful Use program:

"With its increased emphasis on interoperability, patient engagement and more extensive quality measure reporting, Stage 2 is an extremely demanding set of requirements that will correspond to a significant step up in technological capability," MGMA writes. "While ARRA [the statute that created the Meaningful Use program] outlines that the successive stages of the program are to be 'more stringent,' we assert that the requirements of Stage 2 went well beyond the legislative intent." 

That's a very serious accusation. Now, MGMA is not recommending that the program be scrapped. But it, and several other stakeholders, have said that it needs to be significantly revamped going forward.

But that's not going to occur in this rule, which is meant to provide immediate relief and may already be too little too late. 

So where do we go from here? Should CMS issue yet another rule to re-direct the program or is it adequate the way it is? Would, or should, MGMA file suit to challenge CMS' alleged overreaching? Does Congress need to step in?   

This seemingly minor, short-term relief rule may have opened the door to much bigger developments. - Marla (@MarlaHirsch and @FierceHealthIT)

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