But they also criticized those same rule authors for disqualifying many “hospital-based” physicians from receiving ARRA subsidy payments for the purchase of electronic health-record systems. The senators also said they want the CMS to back off from its "all-or-nothing" approach to qualifying for EHR subsidies.
The senators asked Sebelius to fix that “glitch” in subsequent rulemaking, according to a news release accompanying the letter, even though a legislative clarification is in the works.
The CMS rule, released Dec. 30, 2009, and officially published Jan. 13, spelled out how hospitals and physicians could become “meaningful users” of EHR systems technology under the stimulus law. Meeting those meaningful-use criteria is a pre-condition to their receipt of federal reimbursements for the purchase of EHRs, a program to be run through Medicare and Medicaid at a cost to taxpayers estimated to range between $14.1 billion and $27.3 billion.
The public comment period on the CMS-proposed rule ended March 15 with the agency receiving more than 1,000 responses. A final rule is expected later this year.
Heading the list of legislators whose names were affixed to the letter were Senate Finance Committee Chairman Max Baucus (D-Mont.) and Senate Health, Education, Labor and Pensions Committee Chairman Tom Harkin (D-Iowa).
“I am pleased to see CMS is on the right track with its new proposed rule by establishing clear, meaningful objectives for the funds we reserved for health technology in the recovery act,” Baucus said in the release. “By allowing doctors and hospitals to temporarily defer a limited set of health IT goals, we can improve the guidelines HHS has set in ways that will encourage widespread use of basic, functional IT tools and improve patient care.”
In the letter, the senators told Sebelius, “The proposed rule requires hospitals and eligible professionals to satisfy specified objectives in order to be considered a ‘meaningful user' and to receive incentive payments. We strongly support the proposed rule's fundamental goals of improving quality, safety and efficiency while reducing health disparities, engaging patients in their healthcare, improving care coordination, and ensuring adequate privacy and security protections for personal health information. We believe the proposed rule lays important groundwork for achieving these goals.”
But the senators complained that the CMS rule ran contrary to the intent of Congress by deeming a significant number of physicians as ineligible to receive stimulus payments—those who work in both office- and hospital-based practice settings. The senators' statement said the CMS rule created “a glitch in the hospital identification system that could create disparities in incentive payments to hospitals.”
In the letter to Sebelius, they said, “To help ensure success in achieving meaningful use, we recommend that the proposed rule be modified from its current ‘all-or-nothing' approach to one that allows providers to defer a limited set of criteria under Stage 1 of meaningful use while preserving a floor of mandatory functional use requirements, as recommended by the HIT Policy Committee.
“The deferment would only be temporary, as all criteria should be met over the course of the incentive payment program,” the letter continued. “This approach would make significant advancements toward adoption and meaningful use of HIT while allowing an appropriate amount of flexibility for eligible professionals and hospitals. While we believe that the general implementation framework outlined in the proposed rule should be preserved, starting with a phased, flexible approach to meaningful use would be a constructive change.
“In addition,” they continued, “despite legislative intent, outpatient physicians practicing adjacent to hospitals were excluded from HIT incentive eligibility, making it more challenging for these providers to receive the HIT incentives. A technical correction to ameliorate this oversight has been included in the American Workers, State, and Business Relief Act, which recently passed the Senate. However, we ask that you use your administrative flexibility to rectify this concern, regardless of the outcome of the pending legislation.”
Multiple healthcare organizations, including the American Hospital Association, Medical Group Management Association and Association of Medical Directors of Information Systems, have encouraged the CMS and Congress to fix the CMS rule and its broad exclusion of office-based physicians from the IT subsidy program.
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