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CMS Proposes Changes to the Meaningful Use Program

on Friday, 8 May 2015 in Health Law Alert: Erin E. Busch, Editor

The Centers for Medicare and Medicaid Services (CMS) recently released two proposed rules affecting the Electronic Health Record Incentive Program (“Meaningful Use”). The first set of proposed rules relates to Stage 3 (the final stage) of Meaningful Use. The second set of proposed rules relates to Stage 1 and Stage 2 for program years 2015 to 2017. Both sets of proposed rules are intended to simplify the Meaningful Use reporting requirements and reduce program complexity. Due to administrative rulemaking requirements and timelines, the Stage 3 proposed rules were actually released first. Below are the highlights of each proposed rule:

2015 to 2017 Modifications (Stage 1 and Stage 2). The goal of the proposed modifications for 2015 to 2017 is to better align reporting periods for providers; support a flexible, clear framework to reduce provider burden; and ensure future sustainability of the Meaningful Use Program. Highlights of the 2015 to 2017 proposed modifications include:

  • A 90-day reporting period for 2015. For Eligible Hospitals and Critical Access Hospitals, the reporting period could be any continuous 90 days from October 1, 2014 through December 31, 2015 (attestation would no longer tied to the Federal fiscal year). For Eligible Professionals, the reporting period could be any continuous 90 days in calendar year 2015. In 2016, the reporting period would be a full calendar year for all providers.
  • Removal of the existing “core” and “menu” objectives and measures. Due to advancements in EHR technology and provider performance, CMS believes that some of the objectives and measures are duplicative or redundant. The proposed rules include a single, streamlined set of objectives.
  • Modification of Stage 2 requirements for patient engagement. For example, the required threshold for the view, download, or transmit (“VDT”) objective would be changed from five percent of patients to “equal or greater than 1” patient that views, downloads, or transmits health information. Another example is the secure messaging objective which would become a yes/no attestation – whether the capabilities were turned on during the entire reporting period (the existing requirement is that five percent of an Eligible Professional’s unique patients send a message using the secure messaging function).
  • Comments to the 2015 to 2017 modifications are due by June 15, 2015.
  • Stage 3 Proposed Rules. The Stage 3 Proposed Rules were also drafted to simplify reporting requirements and reduce program complexity. Providers would have the option to begin Stage 3 in 2017. Stage 3 would be mandatory for all providers (regardless of previous participation or stage) in 2018. It is important to remember that the Medicare Meaningful Use Incentives end in 2016. In 2017 and beyond, providers must attest to Meaningful Use in order to avoid payment adjustments.
  • Stage 3 calls for a calendar year reporting period for all providers. Stage 3 would include a single set of eight objectives for all providers. There are some noteworthy proposed objectives and measures, including:
  • A requirement that patients be provided access to their health information through an application-program interface (“API”). CMS believes this could offer more flexibility than traditional patient portals. This objective would allow applications to pull patients’ data from an EHR and be available to patients via an application (for example, the Apple Health application on an iPhone). CMS is specifically seeking comment on the nature and challenges to patient access to health information – and what solutions can be put in place to overcome the challenges.
  • A requirement that patient-generated health data from a non-clinical setting be incorporated into the EHR. CMS used the example of data from self-monitoring devices such as a Fitbit® and other devices that monitor vital signs, exercise, medication intake, nutrition, etc. For this measure, CMS is seeking comments on how the information could be captured, standardized, and incorporated into the EHR.
  • Stage 3 includes revised requirements and thresholds for existing objectives such as the summary of care, computerized provider order entry, and e-prescribing objectives.
  • Comments to the Stage 3 Proposed Rules are due by May 29, 2015.

The two rules are proposed and CMS is seeking comments from providers on the proposed timelines, streamlined objectives, and thresholds. Most providers have devoted substantial resources to Meaningful Use and have experienced a variety of difficulties throughout the implementation process. CMS encourages providers to review the proposed rules and submit comments on how to improve the Meaningful Use program. We will continue to monitor the status of the proposed rules and future CMS guidance.

Michael W. Chase

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