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Policy Watch: All Eyes on CMS

January 31, 2011
by David Raths
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Divided Congress not Expected to Produce Much Health IT Legislation


Beyond HIPAA privacy and meaningful use Stage 2, regulators must also establish rules involving the health reform act's administrative simplification and care coordination provisions. Policy advocates weigh in on which topics they will be following most closely this year, as well as a few “sleeper” issues that could have a big impact.

In 2010 the advocacy strategic plan for the American Health Information Management Association (AHIMA) was 75 pages long.

As he put the finishing touches on the version for 2011, Dan Rode, AHIMA's vice president of policy and government relations, realized that it was well over 100 pages. “It is going to be a busy year,” he says.

Indeed it is. On several health information technology policy fronts, there promises to be plenty of activity, especially in the regulatory arena. Among the topics on Rode's radar are Stage 2 of meaningful use, final implementation of HIPAA privacy and security rules, ongoing ICD-10 implementation work, and administration simplification rules in the health reform legislation.

Most health IT policy advocates say their focus is shifting from the newly divided Congress to the Centers for Medicare and Medicaid Services (CMS), which is responsible for rulemaking on many of these issues.

“All eyes are going to be on CMS and not on Congress at this point,” says Jennifer Covich Bordenick, CEO of the nonprofit eHealth Initiative in Washington, D.C. “What will impact the marketplace will be the rules and regulations around care coordination,” she adds. The Patient Protection and Affordable Care Act (PPACA) requires CMS to establish rules around accountable care organizations (ACOs) by January 2012. Those rules will involve restructuring reimbursement and value-based purchasing, as well as new quality reporting requirements. “There is a major role for health IT in this,” Covich Bordenick adds, “because it is all about collecting and exchanging data.”

Dave Roberts
Dave Roberts

The intersection of meaningful use requirements and the new ACO landscape will take center stage in 2011, agrees Keith Figlioli, senior vice president for healthcare informatics at the Premier healthcare alliance (Charlotte, N.C.), which focuses on hospital quality and efficiency improvement.


“CMS is starting to write the ACO-specific language right now and there will be a collision point where that will impact meaningful use,” he says. The biggest issue may involve quality reporting because these new organizational constructs will focus on different types of reporting such as readmission rates and their causes. “In 2011 a light bulb is going to go on for people that perhaps the meaningful use requirements and the ACO model are not well aligned,” Figlioli says. Meaningful use is very EMR-centric, but what works within the four walls of the hospital may not be what you need to manage the health of a population, he adds.


Although policy observers expect less action in Congress this year than in the last few, there are still some issues bubbling up. If nothing else, the change in House leadership and the smaller Democratic majority in the Senate are having an impact on perceptions. “We are hearing from some physicians that they are considering not participating in the EHR incentive program because the Republicans have taken over in Washington, and so the stimulus money will be rescinded,” says Dave Roberts, vice president of government relations at HIMSS. He says that is unlikely.

“We have tried to clear up people's misunderstandings about the way Washington works,” he adds. First, it would require both houses of Congress and the administration to agree on something or a congressional override of a presidential veto. None of that seems possible, Roberts says.

Keith Figlioli
Keith Figlioli

There will be more oversight and committee hearings, but not much more than that is likely to happen regarding the EHR incentive program on Capitol Hill, policy analysts agree.

In the past there has been bipartisan consensus around health IT, notes Sharon Canner, senior director of advocacy programs for the College of Healthcare Information Management Executives (CHIME). “The Bush administration created the Office of the National Coordinator (ONC), and if that groundwork had not been laid,” she adds, “the HITECH Act would not have been created as easily as it was.”

“Congress may put pressure on ONC to move timetables or to merge Stages 2 and 3 of meaningful use,” Canner says. “There may be calls for them to make changes, although it would have to be changes to the regulations, not new legislation.”

Bills that languished in the last session of Congress that would extend the EHR incentives to behavioral health and long-term care settings will be re-introduced, but getting any bills out of the House that would require additional funding may be “next to impossible,” HIMSS' Roberts notes.

U.S. Rep. Tim Murphy (R.-Pa.), a psychologist who co-chairs the 21st Century Healthcare Caucus, says it's critically important that behavioral health is fully integrated with other types of medicine, but he adds that the mental health community has to prove that using health IT will improve care and efficiency. “I can't see this Congress appropriating money for something unless it can be shown to reduce overall costs,” he says. “I also want us to hold hearings to highlight models of improvement in Medicare and how health IT can be a driver.”

The same difficulty may await efforts to get Congress to change the rule regarding multi-campus hospital systems that share a single CMS certification number. Under the final meaningful use rule, they are treated as one hospital, eligible for only one set of incentive payments. “The issue of multi-campus hospitals is important to our members and will be on our roadmap for 2011,” says Chantal Worzala, director of policy for American Hospital Association (AHA). She adds that AHA will try to get legislators and policymakers to look at the bigger picture of how much is being asked of hospitals in a short time frame.

Chantal Worzala
Chantal Worzala

“We want to help federal officials understand better the overlapping timelines of so many initiatives planned or under way, including ICD-10, 5010 standards for administrative transactions, administrative simplification aspects of the health reform act, and the second stage of meaningful use, which straddles the start of ICD-10,” Worzala says.


Sharon Canner
Sharon Canner

One move Congress could make that wouldn't require any additional funding would be extending the Stark exemption that allows hospitals an antitrust exemption to help subsidize physician group technology purchases. With no congressional action, it will expire in 2013.

“We think it should be made permanent, and that is one of our top 10 priorities for this session of Congress,” Roberts says.

One issue that Roberts describes as a “sleeper” is the possibility of Congress studying unique patient identifiers, which has been considered a “third rail” issue to be avoided at all costs because of negative perceptions about the federal government tracking citizens. “It is something that could be a stumbling block to successful health information exchange,” he notes. “We are working with other groups and making presentations on Capitol Hill to suggest that the Government Accounting Office look into it,” Roberts says. “It is possible that a consensus could emerge on this topic.”

Another policy topic that may seem small but that could have widespread impact involves making sure that EHRs are accessible to people with disabilities. The federal United States Access Board is seeking public comment on whether hospitals and healthcare providers should be required to make their Web sites and other health IT solutions accessible to all individuals. “It is the right thing to do, but it has to be done smartly,” Roberts says. “Otherwise, it could become a huge unfunded mandate.”


PPACA's administrative simplification requirements are a huge topic being worked out by regulators this year, according to Robert Tennant, senior policy advisor for the MGMA. PPACA calls for the adoption of a single set of operating rules and HIPAA transactional standards to simplify insurance administration. CMS will establish rules regarding health plan identifier numbers, eligibility verification, and electronic fund transfers, among other things.

“This is something we have been lobbying about for years with no success, and all of a sudden it is like a wish list for group practices, so this is really exciting,” Tennant says.

“It will be a Herculean effort by CMS to get these regulations written,” he adds, noting that there will be disputes in the rulemaking process between the health plans arguing about the cost of implementation and the providers talking about all the value simplification would provide.


Advocates in the telemedicine space have some high hopes for 2011, and their eyes are on the new Center for Medicare and Medicaid Innovation at CMS. Funded at $10 billion over 10 years, the new center will look at 20 different service and payment models, several of which could include telehealth. For instance, it is supposed to test models supporting care coordination for chronically ill individuals at high risk of hospitalization through a health IT-enabled provider network that includes care coordinators, a chronic disease registry, and home telehealth technology. “Medicare is riddled with barriers to telehealth, so we will continue working with regulators and Congress on eliminating those,” says Gary Capistrant, senior director of public policy for the American Telemedicine Association. The major hurdle, he notes, is that Medicare does not cover videoconferencing in metropolitan counties, which includes 80 percent of beneficiaries. “We are working on breaking down that barrier with services that have proven valuable already such as telestroke centers,” Capistrant says.

He adds that the Federal Communications Commission's proposed National Broadband Plan promises to expand existing rural healthcare programs to more physicians and healthcare offices, and final regulations are expected in May.


Of course, all of these advocates say they will be watching closely and offering critiques as ONC crafts the second stage of meaningful use requirements.

Many are concerned that the Stage 2 requirements have to be written before ONC has enough time to evaluate how many healthcare organizations successfully achieve Stage 1.

ONC has been hearing from software vendors all along that it takes them 18 months from the final rule being published to implementation because of the effort required for reconfiguring, testing, and certifying software, says MGMA's Tennant. “If you look at the calendar and back it out 18 months from January 2013, when Stage 2 goes into effect, that is midway in 2011,” he adds. “So they would be adding regulations without the benefit of understanding how the adoption of Stage 1 went.”

The AHA will be seeking to make sure that there is a thorough and open assessment of Stage 1 before decisions about Stage 2 are made, Warzala stresses. “We also would like to see if there are subgroups of providers, such as small and rural hospitals, that might need additional policy support to keep up.”

The eHealth Initiative's Covich Bordenick says there will obviously be some strong examples of people meeting Stage 1, but wonders if there are going to be enough to proceed strongly in Stage 2. “It is the Health IT Policy Committee's role to push the envelope,” she says, “but reality may pull them back.”

Healthcare Informatics 2011 February;28(2):26-35

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