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GUEST BLOG: The Hurry Up and Wait Game Begins

August 26, 2014
by Jeff Smith, Senior Director of Federal Affairs
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Jeff Smith, Senior Director of Federal Affairs

Two key rules have reached the White House’s Office of Management and Budget (OMB) for finalization. Now, the health IT world waits with anxious anticipation for a pair of rules that will determine the future of our industry.

It’s hard to believe, but the health IT world is nearing the two-year anniversary of Meaningful Use Stage 2 final rules, which were published Aug. 23, 2012. But what makes August 2014 such a pivotal month is that two rules, pending finalization at OMB, will determine the next three years of our industry. And a twist of ironic fate would have both rules at OMB at the same time.

Traditionally, the CMS rules govern specific objectives needed to meet Meaningful Use, while ONC’s role is to provide rules defining certification criteria for the EHR technology needed to meet Meaningful Use. During a webinar held in December 2013, ONC officials introduced a plan to divorce their certification program from specific Stages of CMS’s Meaningful Use rulemaking. As a first step, ONC officials outlined plans to introduce a voluntary 2015 Edition of Certified EHR Technology (CEHRT). This “editioning” would enable ONC to fix known technical shortfalls and propose new policies apart from CMS’s Meaningful Use schedule.

Specific to the 2015 Edition, ONC wanted to update certain standards; propose a new certification for “non-MU” EHR technology; and field test ideas ahead of a mandatory EHR Edition upgrade in 2017, the presumed date marking the beginning of Stage 3 Meaningful Use. The proposed rule was released in February with little fanfare among the vendor community. HIMSS’s Electronic Health Record Association called the NPRM, counterproductive, unnecessary and unworkable. And individual EHRA members voiced concern over the industry’s capacity to handle a new upgrade, even if it was voluntary.

Some provider organizations, like CHIME, saw the value in the updates, but questioned the timing. “CHIME applauds ONC for the innovative approach outlined in this NPRM to make more incremental changes to Certified EHR Technology for the benefit of usability, interoperability and standards harmonization across federal agencies,” we wrote. However, we recommended, “ONC reconsider its rulemaking schedule and scope to find ways to achieve the stated policy goals of this NPRM, without regulation.” We saw the vendors, upon which our industry has become ever-dependent, struggling to upgrade existing customers with the 2014 Edition and joined in their concerns about industry capacity.

Regardless, the wheels of rulemaking were set in motion when the decision was made to introduce an NPRM. Very little can be done to stop a rule bound for OMB; so, the world waits as this NPRM sits as a final rule, ready for release at OMB.

The events leading up to CMS’s latest NPRM are the subject of a much longer story, but the timeline over which the rule has arrived at OMB is a regulatory “flash in the pan.” Introduced in May, the CMS MU “Modifications” NPRM is an acknowledgement that 2014 has been a troubled year for an otherwise successful program. In the words of CMS officials, the rule is meant to give providers the ability to meet whatever Stage of Meaningful Use they can, with whatever combination of certified technology they have. Contrary to the 2015 Edition NPRM, this rule received widespread support, with nearly every corner of the provider community voicing support, even from those groups that are usually reserved in offering cheers for CMS. Universally, providers pleaded with CMS to make one additional change, not proposed in the rule: To reconsider the reporting period requirements for program year 2015, which mandate a 365-day reporting period. Many providers who take advantage of new flexibilities offer by CMS in 2014 will have a difficult time reporting 365 day’s worth of data beginning October 1, 2014.  For this reason, CHIME and many other groups asked CMS to give providers the option of submitting one quarter’s worth of data, consistent with the policy in 2014, for program year 2015.

Both rules have tremendous implications for our industry. The CMS rule will determine how much flexibility will be offered to providers in meeting Meaningful Use requirements in 2014, and it will decide the fate of the program in 2015. The ONC rule will likely update certain 2014 Edition certification criteria, create new paths of certification for “non-MU” EHR technology and make other policy changes. Separately, these rules represent pivotal policy decisions, not seen since Stage 2 rules were finalized. Together, they may fundamentally alter the vitality of both Meaningful Use and the EHR certification program – for good or ill.

Jeff Smith is Senior Director of Federal Affairs at the College of Healthcare Information Management Executives (CHIME). He writes the weekly CHIME Washington D.C. Debrief for Healthcare Informatics. This blog is not the same as the Debrief and instead, represents the personal opinions of Smith.