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AHA Calls for 70% Threshold for Meaningful Use Requirements

AHA claims CMS has no legal rationale for not adopting a more flexible approach to meaningful use.

By Sara Heath

- The American Hospital Association (AHA) wants meaningful use to be a more flexible program, allowing hospitals and providers who have met 70 percent of requirements to be categorized as meaningful users.


In a letter addressed to CMS’s Patrick Conway, MD, acting principle deputy administrator, AHA explains that the agency needs to leave behind its “all-or-nothing” approach to dolling out incentive payments, noting that eligible hospitals and eligible providers may lose out on their entire incentive payments by failing to meet only one meaningful use requirement.

“Under this approach, failure to meet any one of the meaningful use requirements under the Medicare and Medicaid EHR Incentive Programs has meant a provider would not receive an incentive payment; more recently, it has meant a provider would be penalized,” writes AHA’s senior vice president Ashley Thompson.

“Given the complexity and level of difficulty in meeting all of the meaningful use criteria, the all-or-nothing approach – in which failure to meet any individual part of an objective, or missing a threshold by a small amount, leads to overall failure in meeting meaningful use – is overly burdensome,” Thompson continues. “It is also unfair to providers that make good faith efforts to comply, may actually comply with a large percentage of the requirements, expend significant resources and funds in doing so, but still fall short.”

AHA has called for similar actions in the past, then also citing the difficulty to meet all of meaningful use’s requirements. CMS countered that the statutes of the program prohibits them from being more flexible; however, AHA now contends that there is indeed such flexibility in the statutes governing the program.

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“In declining to provide greater flexibility, CMS has emphasized that the statute requires the agency to impose more stringent measures of meaningful use to improve the use of EHRs and health care quality over time,” Thompson writes. “While this is correct, it does not preclude a more flexible approach.”

In the past, CMS has given four reasons why it may not adopt a more flexible approach toward meaningful use:

  • The statute requires more stringent measures of meaningful use to improve quality over time.
  • Certain objects and measures capture policies specifically required by statute.
  • Use of a “qualified EHR” must meet all the requirements in order to satisfy the objectives of the law.
  • The flexible approach would not reduce burden.

AHA counters these claims, first explaining that implementing more stringent program requirements does not require CMS to adopt an all-or-nothing approach to issuing incentive payments. This statute simply requires CMS to continue to increase the difficulty in meaningful use measures, and then assess EP and EH success in an according manner.

“...under the more flexible approach, the agency would seek to improve the use of EHRs and health quality by requiring more stringent measures over time, even if, at certain points in time, hospitals did not have to meet some requirements,” Thompson reasons. “Thus, CMS could conclude that a hospital that attests to meeting 70 percent of the meaningful use requirements is a meaningful user.”

AHA also notes that CMS may use its own discretion to determine whether an EP or EH has satisfactorily met certain meaningful use requirements. For example, the agency may determine that if a provider has met 70 percent of the meaningful use requirements, but fell short of the health information exchange requirement, CMS may still regard it as having satisfactorily meeting the requirements of the program.

“In light of the broad discretion Congress granted CMS, the agency could readily conclude that it is satisfied that the statutory requirement has been met under less than an all-or-nothing approach,” Thompson explains.

“That is, not every requirement would have to be met for CMS to find itself ‘satisfied’ that the ‘certified EHR technology is connected in a manner that provides . . . for the electronic exchange of health information to improve the quality of health care, such as promoting care coordination.’”

With regard to measuring the meaningful use of a certified EHR, CMS explains that not measuring all of the program requirements would undermine the foundational requirements of the program. However, AHA contends that this claim is not rooted in the statutes.

CMS does not elaborate on the reasons why it reaches this conclusion. The agency does not say that the statute makes it impermissible for providers to fail to meet these objectives and still be meaningful users. The statute does not address the objectives that CMS considers “foundational goals of the program, which would be undermined if providers were allowed to fail to meet these objectives and still be” meaningful users (Id). Thus, CMS’s third reason for holding to the all-or-nothing approach is not rooted in the statute.

AHA draws the same conclusion about CMS’s final claim that leaving behind an “all-or-nothing” approach would not ease provider and hospital burden. Such claim is not rooted in the statutes, Thompson says, and AHA “respectfully disagrees” with the claim.

At the heart of AHA’s letter was the claim that CMS is not legally required to stand by an all-or-nothing approach to meaningful use incentive payments, and may adopt an approach like the proposed 70 percent threshold for all meaningful use measures.

“[W]e believe that the agency possesses ample legal authority to adopt a more flexible approach, such as the one recently proposed by the AHA,” Thompson concludes. “This flexibility would support providers who have implemented IT functionality but may not have optimized each function sufficiently to meet the full set of requirements in the EHR Incentive Program in order to avoid a payment adjustment.”



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