CMS Rebuffs TMA's Request to Drop Coercive MU Measures

The size of your next Medicare check could very well rest on whether you can get enough of your patients to email you; federal regulators believe that's a sensible way to evaluate your meaningful use (MU) progress. In fact, if you can't get more than 5 percent of your patients to send a "secure message using certified electronic health record technology (CEHRT)," you'll not only lose eligibility for incentive pay, you'll also be penalized. 

Last November, TMA President Austin King, MD, asked the Centers for Medicare & Medicaid (CMS) to drop three measures in its Medicare electronic health record (EHR) incentive program that have nothing to do with clinical care or outcomes and over which physicians have no control. CMS said no. 

In her response to Dr. King's request, then-CMS Administrator Marilyn Tavenner agreed that the measures aren't easy. 

"We recognized the increased challenges associated with the patient engagement objective and its associated measures," she said. "Therefore, we established a low threshold for these measures, recognizing that some measures under this objective require some direct action by the patient." 

At issue are the measurements used in the program's Stage 2 core objectives numbers 7 and 17, which are designed to encourage electronic interaction between physicians and patients. During a 90-day reporting period, physicians who are enrolled in the program must somehow show that more than 5 percent of their patients used the EHR either to look at their medical record online or download or send them to a third party. Another measure requires physicians to get more than 5 percent of their patients to send some kind of secure electronic message. 

There's no grading scale or bell curve applied in the Stage 2 assessment. You must achieve all 22 measures that make up the 17 objectives to qualify for incentive payments. Miss the mark on even one measure, and you're not only disqualified for incentives but also slapped with a payment penalty.

It's an unacceptable all-or-nothing approach, according to Dr. King, and it has no bearing on clinical outcomes. In his letter to Ms. Tavenner, Dr. King said that without evidence showing it improves outcomes, it's unreasonable for CMS to base financial incentives or penalties on a physician's ability to engineer patients' online communication behavior. 

"Many physicians treat elderly patient populations, and it is not reasonable to expect these patients to have access to a computer and the Internet to download or transmit information, much less the desire to do so," Dr. King said. "If CMS desires patients to behave a certain way, the incentives should be for those patients. It should not be required of physicians."

The objectives can be especially onerous for physicians who see higher numbers of Medicare patients, 83 percent of whom are older than 65 years and 40 percent of whom are 75 or older, which is a demographic that is least likely to adopt technology. A 2012 Pew study showed that of persons aged 65 and older, 41 percent do not use the Internet at all, 53 percent do not have broadband access at home, and 23 percent do not use cellphones; starting at age 75, Internet use begins to drop significantly.

Dr. King had also asked that CMS work with Congress to suspend all MU physician penalties set to begin Jan. 1, 2015. "Physicians should not be penalized for not meeting virtually unattainable meaningful use measures," Dr. King said. "The unintended consequence will be reduction in Medicare patients' much needed access to care."

In her reply, Ms. Tavenner said that because the penalties were established by statute, any changes must originate from Congress. "Further, we generally cannot suspend the current measures and objectives without notice and comment rulemaking," Ms. Tavenner said. "Therefore, we cannot accommodate such requests."

For more Medicare EHR incentive program information, visit TMA's Medicare Resource page. For help with Medicare payment issues, email TMA Payment Advocacy, or call the TMA Knowledge Center at (800) 880-7955. TMA members can use the TMA Hassle Factor Log to help resolve insurance-related problems. Also, visit the TMA Payment Advocacy Services webpage and TMA's Payer page for more resources and information.

Action, March 16, 2015

Last Updated On

March 18, 2015