MU2: Value Proposition for Radiology
On March 7, 2012, the proposed rule¹ governing stage 2 of the CMS incentive program for electronic health records (EHRs) and the 2014 EHR certification criteria² were published to generally favorable reviews from organized radiology. Mike Peters, director of legislative and regulatory affairs for the ACR®, explains why the ACR has spent so much time monitoring the program and why the proposed rule for stage 2 represents a significant improvement in the program for radiologists who intend to participate. RBJ: I understand that the Health Information Technology for Economic and Clinical Health (HITECH) Act and its meaningful-use regulations have kept you very much occupied. How much time are you spending on this? Peters: As far as the EHR incentive program goes, we have been following this issue very closely since late 2008, when the HITECH language was first tacked onto the stimulus package. We’ve actually monitored just about every federal initiative, meeting, and event pertinent to this issue over the past three years. I can’t think of any physician association of any specialty, including the AMA, that has spent as much time as the ACR has on this issue. The Office of the National Coordinator (ONC) for Health IT has two extremely active federal advisory committees, with various workgroups and tiger teams under them. It takes a lot of time to follow all of that. We’ve always followed this program under the assumption that somewhere between 50% and 70% of our membership might be eligible, based on the original statute and the CMS stage 1 proposed rule. When the Continuing Extension Act of 2010 removed outpatient hospital settings from the statutory definition of the hospital-based professional, we estimated that almost all of our remaining physician members would be eligible for the program. Our ACR IT and Informatics Committee has been leading us on this issue, chaired by Khan Siddiqui, MD, and Keith Dreyer, DO. Between them, they’ve volunteered hundreds of hours. RBJ: How many practices are you aware of that attested to meaningful use in year one? Do you have a sense of how many might try to attest this year? Peters: There’s no way to know how many people are actively pursuing compliance. What we have right now are the attestation statistics from CMS. As of February, CMS showed that 269 diagnostic radiologists had successfully attested and received dollars; 29 interventionalists, 86 radiation oncologists, and seven nuclear-medicine physicians received meaningful-use dollars, as well. When CMS and the ONC talk about statistics associated with the program, they often trump up registration numbers, but that’s a pretty meaningless measure for judging success. You have to look at Medicare attestation statistics, which actually show that the rates are pretty low, across the physician community as a whole. RBJ: What will practices forfeit if they start later than 2012? Peters: The CMS notice of proposed rulemaking did not propose any changes to the incentive amounts or to the payment adjustments that begin in the penalty phase. All of that is prescribed by Congress in the statute, so CMS doesn’t have any wiggle room there. If people start after 2012, they are looking at reduced incentives, over time. You can begin your first EHR reporting period in 2012 and still get the same amount of incentives over five consecutive compliance years as you would have if you had started last year. In 2013, the incentive amounts go down; then, 2015 is the beginning of the payment-adjustment (or penalty) phase. The way CMS is proposing it, if you’re not compliant by July 3, 2014, you will get the 2015 payment adjustment. As the rule is proposed, you would have to complete your attestation no later than October 1 2014—which is about three months earlier than many people expected, based on the attestation deadlines in the existing regulations. RBJ: The ACR’s initial response to the proposed rules for stage 2 seems positive; some of the accommodations requested were included. What were they? Peters: I would say we are cautiously optimistic about the content of the proposed rules, but we expect many changes—some positive and some negative—before the final rules are promulgated, later in 2012. We have a pretty big platform of requests that we’ve been pushing for in regulations from both CMS and the ONC. I would say that almost all of our requests were addressed, to some degree. The trade press has been focusing on the image-access menu-set objective, but what I think is probably the bigger deal, for compliance by radiologists, is in the ONC’s proposed rule. It is proposing to remove the prior comprehensiveness requirement from the regulatory definition of certified EHR technology. In order to have certified EHR technology now, eligible professionals need to implement a certified complete EHR or a combination of certified EHR modules comprehensively covering all of the certification criteria, including any criteria that correspond with meaningful-use requirements from which CMS granted them exclusions. For example, electronic prescribing and computerized provider order entry (CPOE): If an eligible professional meets the exclusion for those two CMS requirements, the ONC still requires the eligible professional to have access to the functionality to meet those objectives, even though CMS doesn’t require the physician to use it. It doesn’t seem logical. We’ve been pushing for a change to that definition for a long time. For stage 2, the way the ONC is proposing to do it now is to have a pool of base EHR certification criteria. After that, eligible professionals need to implement technology certified for the criteria that correspond with objectives that they are actually meeting. It’s a huge leap in flexibility. RBJ: In general, specialists have been critical of the regulations in that they did not accommodate specialty practice patterns. Do stage 2 regulations better reflect the needs of the specialist (specifically, the radiologist)? Peters: The CMS proposed rules contain pretty much a continuation of the existing paradigm. They still have the exclusions, which are key for specialists. They still have the menu-set discretionary measures, although there are fewer of them. In the proposed rule, there are more than 100 clinical quality measures, and many of them come from interventional and radiation-oncology domains. Granted, a lot of those were in the CMS proposed rule for stage 1, but were removed from the final rules because they were not electronically specified. CMS does intend to whittle down that list to a more manageable level. In terms of radiology’s interests, there also is the proposed change to the CPOE objective, which would include radiology orders for a referring physician. It doesn’t tie specifically to clinical decision support guided by appropriateness criteria, as we would like it to do. In addition, there’s the imaging menu-set objective that a lot of folks have been focusing on: While it’s extremely positive, there are some issues with the wording of that. It’s not clear (based on a conflict between the language in the denominator and the language of the exclusion) whether CMS intended it to be for ordering or rendering physicians. RBJ: If data collection was the objective of stage 1, what do you hope will be added to meaningful-use stage 2 and stage 3 regulations to assist radiology practices? Peters: Right now, we’re just in the comment period. We are soliciting comments from our members and our leaders. We’re talking to our allied organizations in other specialties, as well as to the AMA and to trade associations. We have some meetings with agency staff lined up; we’re just in the information-collection phase and are figuring out what our comments on items of interest, in both proposed rules, will be. We have a list of things that are interesting or concerning and a draft summary of comments. We will probably provide comments on each individual objective and measure. I mentioned the ONC’s proposed new flexibility for the regulatory definition of certified EHR technology; one challenge associated with that is that the ONC wouldn’t be planning to implement that new flexibility until 2014, so that’s not ideal. We’ll definitely be commenting on that. RBJ: Do you have any advice for practices that are struggling to find the implications (for themselves and for their patients) of the stage 2 proposed rules? Peters: Notices of proposed rulemaking should not be used, by anyone, for any purpose other than the development and submission of formal comments. Instead of attempting to predict what the final rules will look like later this year, radiologists, practices, hospitals, and radiology health IT vendors should be looking at what the regulations are currently. For radiologists struggling to comply due to circumstances outside their control, there is going to be some opportunity to apply for the future significant-hardship exemptions, but those have statutory limits associated with them. You can’t be excluded from the penalties for more than five years, for example. Barring additional legislative help in the future, the significant-hardship exemption mechanism is the only leeway CMS currently has for helping people who are unable to comply. If people want to comply, and it makes business sense to do so, they should be reading what the regulations are now, going to the ACR’s resource page (www.acr.org/SecondaryMainMenuCategories/GR_Econ/Meaningful-Use-Resource-Center.aspx), and going to the CMS page and looking at its educational materials (www.cms.gov/Regulations-and-Guidance/Legislation/EHRIncentivePrograms/EducationalMaterials.html). You should also look at what technology you have access to now and whether it meets the regulatory definition of certified EHR technology. You can check a product’s certification status on the ONC’s certified health IT product list website (oncchpl.force.com/ehrcert?q=CHPL). RBJ: Overall, do you think that attestation is worthwhile? Is this program improving care? Peters: There is such a variety of practice scenarios and settings in our community that it’s hard to say what works for everybody, particularly on an issue like this. Someone might work in a small community hospital that’s unwilling to provide them the technology and the data they need. Some are in much better positions. Sitting in this position, I’ve heard mostly from those in the radiology community who are frustrated and encountering issues with compliance. If people comply and have success with a federal program, they generally don’t call the ACR’s government-relations office. The ACR’s objective is to identify the barriers, either real or perceived, and advocate improvements to the regulations, so that all of our eligible members can participate, if they choose to do so. We’ve had some limited success in influencing the original stage 1 rule making, as well as the current proposed rules, but this effort has been (and will continue to be) an uphill battle. There are literally hundreds of national organizations, companies, patient groups, and others who are advocating their respective positions related to this issue—and there is, unfortunately, very little sympathy in the government (and many other stakeholder communities) for the concerns of medical specialists. From the broader perspective of health-care policy, there are obvious benefits to having the radiology community take part in the federal government’s efforts to standardize health IT and promote information exchange. Radiology has seen, firsthand, how things such as CPOE with integrated appropriateness clinical decision support, as well as imaging data exchange, can enhance decision making, improve patient care and safety, and reduce costs. If the federal government catches on and implements policies that establish incentives for appropriate referring behaviors and data sharing, diagnostic imaging will eventually get the perpetual kick-me sign off its back. More important, in this day and age, US patients expect radiology information to be secure, accessible, and shareable alongside their other pertinent medical data.