CMS Final Rule: Flexibility, Innovating, and Being Set Up to Fail

PlusAndMinus-278x300Extended Thoughts on Providers and the Final Rule

By Joy Rios, Managing Partner at Practice Transformation
Twitter: @askjoyrios

As expected, there’s been lots of commentary on last week’s announcement about the Final Ruling for modifications to the EHR Incentive Program that offered ‘flexibility’ to providers attesting 2014 and upset many hospitals, who are entering their 2015 reporting year in a few short weeks from now.

John Lynn, one of Health IT’s popular bloggers, wrote a longer than average post on the topic, wherein he put us all to shame by referencing page numbers within the 90-page ruling, letting us all know how committed he is to the industry. So much so that he combed through the document over Labor Day weekend. Thank you John!

He called me out on Twitter asking for my opinion. Double thank you.

Well, John, I’m glad you asked.

You posed the question, “What does ‘unable to fully implement’ and ‘2014 Edition CEHRT availability delays’ mean?” 

My take on it is that it does not mean that providers who were simply unable to meet the Stage 2 measures should attest to Stage 1.

I think you’re right, that “if you have the 2014 certified EHR software and can attest to MUS2, then you better go ahead and do it.” However…

The only caveat I would add to your statement is that so long as providers and staff have been trained on the new system, then yes, go forth with MUS2 reporting. But if the practice was just upgraded and left to users to figure it out on their own, for the sake of patient safety or security concerns, I think the case could be made for sticking with MUS1. I like to steer people do to what’s right for their organization, not just chase government dollars, although I do understand the inclination to do so

Audit Proofing

To add to that, I would encourage providers or hospitals that intend to claim that they were unable to fully implement 2014 Edition CEHRT to get a statement in writing from their EHR vendor. Ideally, this statement would include the vendor’s 2014 certification date, their implementation schedule for upgrading systems, and their ability to provide training on the new system. Make sure to keep this document with attestation materials in case of audit.


Personally, I think the ‘flexibility’ is aimed more toward ambulatory providers than to hospitals, where ambulatory providers have an extra three months to get on an upgraded system and to also get the training they need to make sure everything works as it should, update any workflows as needed, etc. If they don’t have all of that in place by October 1, they can attest to another 90-day period this year on their 2011 Edition software.

The 365-day reporting period that CHIME is all up in arms about is much less of an issue for ambulatory providers. Although, I do agree that had CMS granted a 90-day reporting period for 2015, they would have increased participation and secured more long-term success. Scott Mash commented on your post that “workflows for core/menu objectives and CQMs become engrained and would continue even after the close of a reporting period.” I totally agree.


I think you’re right – it’s not fair that the vendors that took the time and spent the money to update their systems are now in the same pool with those that took a more blasé approach. The procrastinators are essentially getting rewarded for “bad” behavior in 2014. However, I hope that vendors that lead the charge will find themselves ahead of the game in 2015, since all 2015 attestations must come from 2014 Edition software…

Because while those vendors that are still in the throes of upgrading to 2014 Edition standards, the ones that have already cleared that hurdle are now in a position to work on their “want-to-haves” for their providers. Now that CMS is taking a rest with regard to certification standards, EHR vendors should have the next year, maybe even two or three years, to innovate. What a concept.

Maybe their focus will shift to interoperability. We’ll see.

Being Set Up To Fail

As far as CMS digging deeper, I’d like them to consider a MU grading scale, where the Pass/Fail scoring goes to the wayside, and instead if a provider misses the mark on an objective, they see a corresponding percentage drop in their incentive money. This kind of change would save a ton of organizations from penalties and could ease a lot of fears out there.

With talk about MU breathing its “last gasp” as participation plummets, I have to point out that MU penalties aren’t going anywhere. CMS stands to gain a huge spike in revenue from providers opting out of MU. Could that be the evil plot twist? That MU is just a big setup to justify their paying less in healthcare reimbursement? I sure hope not. More than just about anything, I hate it being set up to fail. With the Pass/Fail approach, and the extreme complexity of meeting MUS2, I truly hope that is not what CMS is doing.


Let’s be fair. Changing one habit is hard enough. CMS is asking providers to adopt 20+ new habits, with pressure to be successful in all of them. One of the biggest unfairnesses I see is when a practice makes a real effort to adopt, adapt, and make progress with MU, but if they fall short on just one objective, they are presented with the same penalty as folks who did nothing.


I’d like to think that provider’s goals, at the end of the day, are included in the the goals of Meaningful Use. But the reality is that the future of the program could indeed be at risk if CMS is unwilling to make accommodations. The fact that 1139 people commented on the proposed ruling and not one single word was changed is a clear sign, to me at least, that they’re not listening. They say they are – in fact, they go to great lengths to allow time and a place for public comment, but if at the end of the day they’re going to go forward with their original plan, there truly is a disconnect.

And if that’s the case, I wouldn’t blame providers for giving up.