EHR Rules Demand Controlling Your Patients 

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Practice Management Feature – December 2012 

Tex Med. 2012;108(12):33-36.

By Crystal Conde 
Associate Editor  

Federal officials think you can make patients do whatever you tell them to do. Or so it appears in the Stage 2 electronic health records (EHRs) meaningful use rules the Centers for Medicare & Medicaid Services (CMS) adopted this summer.

One of the updated rules' new core measures for EHR incentives in Medicare and Medicaid requires you to electronically communicate at least once a year with 5 percent of your patients, and 5 percent of your patients must view, download, or transmit their health information to a third party.

"The goal of this objective is social engineering – that is, achieving this objective requires doctors to make patients do something," Joseph Schneider, MD, chair of the Texas Medical Association Ad Hoc Committee on Health Information Technology, wrote CMS in a 14-page TMA letter objecting to the requirement, originally proposed to cover 10 percent of a physician's patients. "There is no objective evidence to show that improved outcomes will be the result of physicians' actions to change patients' behavior in the proposed manner. Without such evidence, it is not reasonable for CMS to base financial incentives or penalties on a physician's ability to socially engineer this particular patient behavior," wrote Dr. Schneider, a Dallas pediatrician and chief medical information officer for the Baylor Health Care System.

The measure is a sore spot among physicians.

Matt Murray, MD, a Fort Worth pediatrician and vice chair of TMA's HIT committee, opposes "physicians being measured, incentivized, or penalized based on patient actions that are beyond reasonable control of the physician, especially if there is no objective evidence showing how such actions improve patient outcomes."

In response to TMA's concerns about the measure, CMS said that the 5-percent threshold shouldn't be difficult to achieve and that physicians have influence over patient behavior.

Dr. Schneider worries CMS's intent with the measure represents a "slippery slope."

"CMS thinks it listened because the agency reduced the requirement from 10 percent to 5 percent," he said. "What CMS really didn't hear in TMA's objection was that physicians don't have control over what patients do and don't do. What will they require next? Will CMS require 20 percent of a physician's patients to lose weight in order for that physician to earn Stage 3 incentives?"

In adopting the new rules, CMS raised the bar on the measures physicians have to achieve to earn incentives in Stage 2, Dr. Schneider says. For example, Stage 1 required physicians to give patients their clinical summaries in three days. In Stage 2, physicians have only one day to do so.

"CMS is doing what it said it would do. Now we need to determine whether CMS has raised the bar to a level that's attainable for most physicians and vendors," he said.

Physicians who started the EHR incentive program in 2011 or 2012 must comply with Stage 2 criteria beginning in 2014. To qualify for the meaningful use incentives in Stage 2, physicians have to meet 17 core objectives and three menu objectives from a list of six. To access the Stage 2 meaningful use final rule, a table comparing Stage 1 and Stage 2 objectives, a complete list of the Stage 2 core and menu measures for physicians, and a Stage 2 timeline, visit the TMA website

Physicians do have a chance to prompt CMS to adjust the rules. After CMS adopted the Stage 1 meaningful use final rules, the agency published hundreds of reinterpretations of the rules, and Dr. Schneider says it's likely the same will occur with the Stage 2 rules.

"The biggest thing TMA and its physician members can do is ask practical questions that cause CMS to define things more carefully and more reasonably as the agency interprets the rules," he said. "We need to ensure the meaningful use Stage 2 criteria are truly meaningful, not just boxes to check that satisfy a requirement. The measures should ensure physicians are using their EHRs in ways that truly benefit patients and medical practices."

In its 14-page comment letter to CMS, TMA specified three broad suggestions to improve the proposed Stage 2 rules. TMA said CMS should: 

  1. Carefully align meaningful use goals with market ability. Hastily developed systems jeopardize patient safety, TMA wrote, adding that much of meaningful use value comes from the capability for health information exchange (HIE). The association pointed out that most funded HIEs in the state cannot yet effectively exchange patient information and suggested CMS analyze market capabilities to ensure the marketplace is ready for all proposed criteria.
  2. Provide adequate exclusions so that physicians can fully participate in the program.
  3. Give physicians forced to switch EHRs (for example, due to a vendor decision to discontinue a product) a way to participate in the Medicare meaningful use program without losing a year of incentives during the transition. "With over 1,200 certified EHRs this will be a likely issue as the criteria become more difficult for smaller EHR companies, forcing them to either close or be sold to a larger company," Dr. Schneider wrote.  

The association recommended CMS allow physicians to meet only 90 days of meaningful use during the 2014 transition, and the agency heeded TMA's advice. The rule allows physicians to meet the reduced reporting period because of EHR vendors' need to upgrade their systems to meet new certification requirements adopted by the Office of the National Coordinator for Health Information Technology (ONC).  

TMA Weighs In 

The EHR certification rules complement the CMS meaningful use Stage 2 rules. The ONC fact sheet on the rules related to standards, implementation specifications, and certification criteria for EHR technology is available online.

TMA submitted an 11-page comment letter to ONC on its proposed EHR technology standards and certification rules in May. In the letter, signed by Dr. Schneider, TMA cited the example of the hefty expenses one Texas physician faced when forced to transition to another EHR system. An EHR vendor discontinued a product the physician purchased nine months earlier.

"The new product that the vendor recommended cost twice as much as the product initially purchased. Because of the price difference, the physician shopped around and decided to switch to another company. The cost for the physician to migrate only nine months of patient data was $12, 000," Dr. Schneider wrote.

To remedy the problem and reduce the price associated with transferring data, TMA recommended CMS and ONC require vendors to tag key data elements that would typically be moved in an EHR transition with standardized XML, and to receive and process data with standardized XML. At this time, such a requirement isn't part of the rules.

Dr. Schneider and TMA also called on the agency to establish a single entity to which physicians could report EHR vendor problems that negatively affect patient safety without fear of vendor retaliation.

TMA explained that despite the benefits of EHRs, patients can be harmed by EHR problems. For example, an EHR could have a programming malfunction that prevents it from saving a physician's notes in a patient's record.

"By having a reporting and tracking mechanism that is designated as the sole place to report such issues, industry can quickly be made aware of and respond to such issues. This mechanism also holds EHR vendors responsible for quickly addressing problems that need immediate attention," Dr. Schneider wrote.

In the letter, TMA expressed frustration over the federal government's inadequate response to the association's call to establish a robust EHR reporting mechanism. The CentrEast Regional Extension Center developed such a resource with its EHR Support Center. The online adverse event reporting tool gives physicians a place to submit EHR problems and to share successful techniques that improve EHR use. Dr. Schneider encourages physicians to use that site to report EHR problems.

Rules Could Affect Vendors 

ONC says EHR technology certified to meet the 2014 certification criteria will support Stage 2 meaningful use incentive program rules. TMA worries some of the more than 1,200 certified EHR vendors could close rather than seek recertification or could discontinue products.

"We're already seeing vendors with multiple products saying they're not going to support one of the products," Dr. Schneider said.

Dr. Murray predicts EHR vendors who don't have enough employees to develop and implement needed products will struggle to survive.

"The EHR certification rule will put a major strain on vendors' resources over the next two years. They will have to spend a lot of time and effort programming their products to meet certification requirements and then implementing these upgrades for all of their physician customers by 2014. This is in addition to their continual efforts to enhance their products to remain competitive," he said.

Kevin Spencer, MD, an Austin family physician and member of TMA's Ad Hoc Committee on Health Information Technology, also wonders how companies with a small customer base will fare under the new rules, which require them to meet expensive certification standards.

"I do think we'll see some vendors leave the market, and I envision a consolidation of the EHR market," he said.

Careful selection of EHR vendors will be key for physicians moving forward, Dr. Schneider says.

"Physicians should try to ensure vendors have a significant enough user base in a specific specialty, nationally and locally, to stay in business," he said.

Good Practice 

Dr. Spencer says achieving Stage 1 and Stage 2 meaningful use requirements benefits physicians and patients.

"It's good for patients to have all of their physicians exchanging their data in a meaningful way," he said.

"For our practice, jumping into an EHR system has revolutionized how we practice and how we engage patients. We have almost 17,000 of our patients on our portal, which allows them to make appointment requests, access health reminders, and email us in a secure environment," he said.

Dr. Spencer participates in the Medicare incentive program and has earned $18,000 for achieving Stage 1 meaningful use. (See "Medicare and Medicaid Incentives" below.)

For more information, visit the CMS EHR Incentive Programs website. Additionally, TMA's EHR Implementation Guide, EHR Product Comparison Tool (TMA member login required), Medicare and Medicaid EHR Incentive Comparison, EHR incentive eligibility tool, and Medicare and Medicaid incentive program instructions are available on the HIT site.

 Crystal Conde can be reached by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by email. 


Medicare and Medicaid Incentives 

Health professionals in the Medicare incentive program can earn up to $44,000 over five years for meeting meaningful use criteria from 2011 to 2016. Eligible Medicare physicians in a health professional shortage area can receive a 10-percent increase in incentives.

Eligible non-hospital-based physicians with at least 30-percent Medicaid patient volume can receive up to $63,750 over six years in incentive payments from 2011 to 2021. Eligible non-hospital-based pediatricians with at least 20-percent Medicaid patient volume could receive up to $42,500 during the same period.

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Last Updated On

November 20, 2017

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