As revelers celebrated the arrival of 2016, all indications were that Meaningful Use (MU) Stage 3 would proceed, despite ongoing, intense opposition to the program by physicians and health systems. After all, the Stage 3 final rule was just issued in early October 2015. But on January 11, Acting CMS Administrator Andy Slavitt stated that MU "as it has existed—with [the Medicare Access and CHIP Reauthorization Act, or MACRA]—will now be effectively over and replaced with something better." Slavitt subsequently tweeted that in the future, CMS will reward outcomes, rather than the mere use of technology; permit physicians to customize goals around their individual practices to spur development of user-centered technology; promote use of open application program interfaces (APIs) to "level the tech playing field" and decrease vendor electronic health record (EHR) lock-in; and foster interoperability that builds on actual physician and patient interactions and prevents data blocking. Slavitt also suggested that on March 25, CMS will provide more details on future health information technology incentives that are focused on patient outcomes.
MU's Misaligned Incentives
MU program critics expressed dismay that the vast majority of the $21 billion in Medicare incentives and $10.2 billion in Medicaid incentives (through November 30, 2015) issued to hospitals and physicians for becoming so-called "meaningful users" of certified EHR technology simply helped providers to buy certified EHR technologies and electronically document the provision of health care, instead of driving actual data-sharing by requiring the use of EHR technologies that are interoperable (i.e., that share information with each other readily without the need for custom interfaces). Because the MU program paid physicians and hospitals to "show their work" in meeting detailed program measures and objectives (thereby incentivizing EHR vendors to focus programming on such detailed program requirements), rather than paying for actual interoperability among the most widely used certified EHR software systems, this unsatisfactory outcome was practically guaranteed. Additionally, providers struggled to adjust their workflows to match the requirements of their clunky EHR software products, which were not developed for their specific work processes but instead were tailored to meet program requirements. These and other difficulties resulted in 209,000 physicians and other practitioners receiving 2% Medicare payment cuts in 2016 for failing to meet MU program standards in 2014.
Is MU Dead?
Despite the apparent widespread relief with which Slavitt's comments were received by the health care industry, do those comments truly signal the end of the MU program? Not likely, as MU is codified in the Health Information Technology for Economic and Clinical Health (HITECH) Act. Further clarifications from CMS obviously are needed, and providers should not simply assume that they may terminate their MU efforts immediately. However, it is likely that any "replacement incentives" will be baked into the Merit-based Incentive Payment System (MIPS), which consolidated three quality incentive programs and, starting in 2017, will base portions of physicians' Medicare reimbursement on achievement of quality, cost, technology use, and practice improvement thresholds identified in future rulemaking.
Renewed Focus on Interoperability
In the meantime, a number of initiatives designed to promote interoperability are underway. In MACRA, the legislation enacted in April 2015 that repealed the Medicare Part B Sustainable Growth Rate reimbursement formula and replaced it with MIPS, Congress outlined a "national objective" to increase EHR interoperability so as to achieve widespread health information exchange by the end of 2018.1 In October 2015, the Office of the National Coordinator (ONC) issued its Final Interoperability Roadmap, in which ONC proposes to have the U.S. health care system fully interoperable by 2024 through the adoption of federally recognized national interoperability standards. The Fast Health Interoperability Resources (FHIR) standards, created by the Health Level Seven International health care standards organization, may be a gateway to interoperability: the standards simplify data exchange by permitting the transfer of specific data elements (such as a patient's gender) instead of entire documents containing multiple data elements.2 Instead of having to sift through pages of information to find one or two pieces of relevant data, a provider can request and receive the specific data elements needed. FHIR standards currently are being tested worldwide.
Health information technologies must be user-centric and assist physicians in caring for patients, rather than distracting physicians from interacting with their patients. CMS' transition to a focus on patient outcomes, rather than on the mere use of technology, appears to be an obvious end product of the ACA's requirements for risk-contracting and alternative payment models. This new focus also will enable providers to work with EHR and mobile health vendors and other tools (like APIs) to create new programs designed to measure those patient data and outcomes that truly lead to improvements in patient care and involvement. Observing how CMS, ONC, and other health care industry stakeholders jointly work in 2016 to spur and obtain tangible benefit from true interoperability should prove fascinating.
1 Office of the National Coordinator for Health Information Technology,Connecting Health and Care for the Nation: A Shared Nationwide Interoperability Roadmap, Final Version 1.0, p. ix.
2 B. Ahier, FHIR and the Future of Interoperability, Government Health IT, Jan. 6, 2015, available at www.govhealthit.com/news/fhir-and-future-interoperability.
This article was published as part of the Top 10 Health Law Issues 2016 in the February 2016 issue of AHLA Connections. © 2016 American Health Lawyers Association. All rights reserved.