Proposed MIPS rule needs some serious vetting

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The Centers for Medicare & Medicaid Services last week finally unveiled its proposed rule implementing the Medicare Access and CHIP Reauthorization Act (MACRA) and the new Merit Based Incentive Payment System (MIPS), which rolls eligible professionals out of Meaningful Use and into a new combined quality and reporting initiative.

The new "quality payment program" will measure participants in four performance categories: quality (50 percent) resource use (10 percent) clinical practice improvement activity (15 percent) and Meaningful Use of certified electronic health record technology, now called Advancing Care Information (25 percent). 

The proposed rule provides some welcome relief when it comes to Meaningful Use reporting. For instance, it allows doctors to select the measures that reflect how they use EHRs and what best suits their work. It also jettisons the all-or-nothing grading approach, allowing a base score for reporting and additional scores for performance. The rule reduces the number of measures to be reported, and also hones in on some of the more important aspects of EHRs, such as information exchange and security.

Additionally, participants only have to report to one public health registry. The program even expands the type of clinician that can participate. 

But even a quick glance at the 962-page rule reveals several fundamental issues, including:

Timing: MACRA requires the rule implementing MIPS to be published by this November; the first performance period starts in 2017. But the changes that must be made by providers, vendors and CMS to get this ball rolling are massive. Three different programs--Meaningful Use, Value Modifier and Physician Quality Reporting System--are being consolidated, and the new program is vastly different, containing "composite performance scores," payment adjustments, sliding scales, additional performance thresholds for "exceptional" performance and the like.

Can this be pulled off in time? Or is it creating a rush job that will be full of problems that will need to be continually adjusted with additional rules, the way the Meaningful Use program was?

It took Congress nearly 20 years of kicking can on the unworkable Sustainable Growth Rate formula for paying physicians before agreeing to repeal it. Why so little time to create the new replacement program? I'd rather make sure that the industry has sufficient time to adjust and prepare for such a new change than botching its rollout.

ONC's role: We've already seen that ONC is trying to repurpose itself as less of a Meaningful Use regulator and more of the guru of EHR certification. That's not necessarily a bad thing; someone needs to do it.

But ONC's proposed rule issued in March giving it direct review of certified technology raises big questions--and red flags--as to whether the agency is trying to grab more authority than it's entitled by law.

Indeed, many of the commenters on the direct review rule have expressed concern that ONC is overreaching, that it doesn't have the authority or the resources to add these powers to its arsenal.

But CMS' proposed MIPS rule seems to treat this added authority as a done deal, saying that ONC's direct review of the technology is "critical" to the success of Health and Human Services Department programs that require CEHRT. If that's true, then why didn't ONC have direct review power before this? At a time when many are questioning the scope of ONC's authority and activities in light of the eventual sunset of the Meaningful Use program, it looks like CMS may be jumping the gun here.

The disparate treatment of hospitals and vendors: Only physicians and other clinicians in the Medicare program are subject to MACRA and MIPS. Hospitals are not part of this program.

Or are they?

The proposed MIPS rule doesn't limit its reach to physicians. CMS is using the rule to increase the attestation burdens on both physicians and hospitals. CMS is proposing to require all eligible clinicians and eligible hospitals to attest, not only that they'll cooperate with surveillance and oversight of certified EHR technology, but that they'll also agree to a three-part attestation that they're connected and not engaged in information blocking.

I'm not against adding such attestations. But if CMS is using this rule to impose requirements on hospitals, which are not part of MACRA, why leave out the vendors? Shouldn't they also be attesting that they won't engage in information blocking? ONC's proposed direct review rule doesn't address it, either; it would require vendors to attest, but only that they've met any requirements in a corrective action plan. Is CMS missing a golden opportunity here? Or are vendors getting a pass with voluntary pledges and codes of conduct?

This rule needs in-depth scrutiny. These questions are just the tip of the iceberg.

Comments are due June 27. - Marla (@MarlaHirsch and @FierceHealthIT)

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