CMS Overpaid $729MM in MU Payments: What Does That Mean for You?

Lynn Scheps

Lynn Scheps

VP, Government Affairs & Consulting Services at SRS Health
Lynn Scheps is a leading resource on MACRA, MIPS, and Meaningful Use. She is the SRS liaison with government policy makers. Representing the voice of specialists and other high-performance physicians, she develops strategies to respond effectively to government initiatives.
Lynn Scheps

overpaid-blogIt’s been all over the press for the past week—CMS paid a lot of money in the form of EHR incentives (Meaningful Use) to providers who did not truly earn them. These inappropriate payments were revealed in a report by the OIG (Office of the Inspector General) that reviewed CMS’s compliance with Federal requirements in the Medicare EHR Incentive Program for eligible professionals from 2011-2014. Although the subject of the OIG’s audit was CMS—in contrast to the audits of providers (pre- and post-payment) that have been conducted by Figliozzi and Company—there are some important implications for providers.

Here are two of the OIG’s major conclusions:

  • 14 EPs (Eligible Professionals), out of a sample of 100 who attested to having met MU one or more times did not actually meet the MU requirements. They either could not support their attestation with sufficient evidence or had errors in their attestation. Affected payments to these providers totaled $291,222. Extrapolating on this data, the auditors estimated that CMS inappropriately paid over $729 million.
  • In addition, 471 payments to EPs who switched between the Medicare and Medicaid incentive programs were incorrectly calculated, accounting for another $2.3 million.

The report recommended that CMS:

  • recover the $291,222 from the EPs who had the unfortunate luck to have been sampled [editorial comment is mine, not the OIGs!] and found to be non-compliant;
  • recover the $2.3 million in overpayments to EPs who switched programs; and
  • try to recover some of the estimated inappropriate payments made to other providers.

It’s likely that CMS will pursue the first two recommendations, but yet to be determined what—if anything—they will do about the third. That said, however, one thing is certain: CMS will intensify its oversight going forward. (This was another of the OIG’s recommendations.) Does this mean you should abandon your plans to participate in MIPS and/or MU (Medicaid program)? Absolutely not! It does, however, imply that it will now be more important than ever to keep full documentation to support everything you submit. And, make sure to keep it somewhere that will survive any future changes in software, hardware, and/or practice staff.

90-Day MU Reporting: Deja-Vu All Over Again!

Lynn Scheps

Lynn Scheps

VP, Government Affairs & Consulting Services at SRS Health
Lynn Scheps is a leading resource on MACRA, MIPS, and Meaningful Use. She is the SRS liaison with government policy makers. Representing the voice of specialists and other high-performance physicians, she develops strategies to respond effectively to government initiatives.
Lynn Scheps

flag-money-stethLast week, in keeping with what seems to have become a mid-year tradition, CMS issued a proposed rule that—amidst its 700-plus pages related to hospital payments—reduces the 2016 MU reporting period from the full calendar year to any 90 consecutive days. (Note that this applies only to providers participating in the Medicare, not Medicaid, EHR Incentive Program, and has no effect on PQRS reporting.) Would it have been better if the announcement had come in a more timely fashion—i.e., at the beginning of the year instead of the middle? Absolutely! But don’t let that keep you from taking advantage of this opportunity.

This is good news for providers who had given up on MU for 2016—or who got off to a slow start on the program this year. Here’s an opportunity to get back in the game and avoid the 2018 payment adjustment (3% or 4%, to be set at the discretion of the Secretary of HHS). It also provides a bit of a breather for those who are successfully demonstrating meaningful use and may be able to identify an already-completed 90-day period during which they met all the requirements. These providers can now turn their attention to preparing for MACRA, which is proposed to be effective on January 1 and in which MU (renamed “Advancing Care Information”) is only one of the four components.

So, what accounted for this change? Is it an indication of a kinder and gentler CMS to come? The CMS Fact Sheet states that CMS is trying to “assist health care providers by increasing flexibility in the program.” Was it in response to the deluge of comments to the MACRA rule that screamed “Help!,” or to the repeated requests for relief submitted by providers, organizations, and members of Congress? Let us know below what you think brought about this change of heart.

The End of MU… Oh, Never Mind!

Lynn Scheps

Lynn Scheps

VP, Government Affairs & Consulting Services at SRS Health
Lynn Scheps is a leading resource on MACRA, MIPS, and Meaningful Use. She is the SRS liaison with government policy makers. Representing the voice of specialists and other high-performance physicians, she develops strategies to respond effectively to government initiatives.
Lynn Scheps

chameleon-315pxAccording to a recent speech by Andy Slavitt, Acting Administrator of CMS, “The Meaningful Use program as it has existed will now be effectively over.” Not surprisingly, the media picked up this news—particularly the word “now”—and ran with it, gleefully proclaiming the “End of MU in 2016,” “CIOs Celebrate End of MU,” “MU on Deathwatch,” etc. It was easy to believe that Slavitt was predicting the demise of MU to be imminent since the stated topic of his talk was “policy areas that will affect the healthcare sector in 2016.” However, in Tuesday’s CMS Blog, Slavitt—writing with Karen DeSalvo—walked his statement back a bit. That said, this is still quite significant news: CMS has formally acknowledged what Slavitt himself referred to as the frustration and burden that physicians have been dealing with since the start of MU.

The key phrase in his statement about MU is “as it has existed.” MU is to be, in Slavitt’s words, “replaced with something better”—i.e., a new and improved version of itself. It is not going away. We already knew that MU had been identified as an integral part of a new program called MIPS under MACRA, the regulations for which are still being written by CMS. MACRA, the legislation that replaces the Medicare Fee Schedule’s SGR calculation, becomes effective in 2017, with a new schedule of payment adjustments (a.k.a. incentives and penalties) beginning in 2019.

Slavitt’s “announcement” was clouded by uncertainty, but was greeted, nevertheless, with great jubilation and high expectations, some of which were dashed by the clarifications published in the subsequent CMS Blog. In his speech, Slavitt had provided little insight into exactly how MU will be restructured. It begged the questions: Will the changes to the requirements be radical enough to be perceived by physicians as “something better?” What will become of the Stage 3 Rule, which is currently undergoing finalization and is due to go into effect in no later than 2018? And, will the MU penalties scheduled for 2017 and 2018 remain in effect or be eliminated? The CMS Blog answered some of these questions, to the disillusionment of many providers:

  • The current law requires that we continue to measure the meaningful use of ONC Certified Health Information Technology under the existing set of standards.
  • We encourage you to look for the MACRA regulations this year; in the meantime, our existing regulations—including meaningful use Stage 3—are still in effect.

Despite the myriad details yet to be determined, what we do know about the future is that physicians will increasingly be rewarded for quality over quantity of care. Therefore, a critical component of the new government programs will be the demonstration and reporting of improved patient outcomes (most likely in PQRS fashion). We can also be confident that MACRA (and any new version of MU it contains) will demand heightened interoperability and patient engagement, and physicians will have to meet requirements that support these goals.

The question of timing notwithstanding, should you be excited about this announcement? I would suggest cautiously so. We are optimistic that the anticipated changes will bring some relief from the unnecessary administrative burdens with which physicians have been struggling and let them get back to focusing on the practice of medicine. But unless concomitant changes are forthcoming on ONC’s side to streamline the excessive EHR certification requirements on the books for 2017/2018, EHR developers and vendors will still not have the necessary time or freedom to focus on innovations that would deliver the efficiencies and clinical benefits that would be of maximum value to physicians and their patients.

As always, SRS will keep you up to date on all developments in this area as they are revealed over the next few months. Please feel free to contact Lynn Scheps, Vice President, Government Affairs, if you have any questions.

90-Day MU Reporting: Just What the Doctor Ordered

Lynn Scheps

Lynn Scheps

VP, Government Affairs & Consulting Services at SRS Health
Lynn Scheps is a leading resource on MACRA, MIPS, and Meaningful Use. She is the SRS liaison with government policy makers. Representing the voice of specialists and other high-performance physicians, she develops strategies to respond effectively to government initiatives.
Lynn Scheps

Rules & RegulationsJust as physicians were considering abandoning Meaningful Use and surrendering to future Medicare penalties, CMS issued a proposed rule for 2015 that breathes new life into the program. If full-year reporting was perceived as the insurmountable obstacle, the proposed reduction to a 90-day reporting period should recapture interest.

Although a proposed rule is not final until it is codified as a final rule—not anticipated until August—past experience has demonstrated that the major structural features typically survive as proposed. The shortened reporting period was announced as CMS’ intention in January and formally proposed last Friday. I think it is fair to say that one can be reasonably confident in this particular provision of the rule.

As for the other features of this proposed rule: In a former EMR Straight Talk post, I wrote, “Even more intriguing to me than the change in reporting period is . . . the intention to “modify other aspects of the program to match long-term goals, reduce complexity, and lessen providers’ reporting burdens.” CMS has come through in this regard and proposed changes for 2015 through 2017. The revisions encourage a focus on the advanced use of EHR technology to support health information exchange, consumer/patient engagement, public health reporting, and quality improvement. This is the narrowed focus that stakeholders, (including SRS on behalf of physicians), have been demanding since the program’s inception.

The following are some other highlights of the proposed rule for 2015 through 2017:

  1. Reporting would be streamlined: Many Stage 2 measures would not be individually reportable, particularly the paper-based or box-checking measures. Caveat: this does not, however, mean that the data would no longer be required–the information would still be necessary for the patient portal, for the summaries exchanged between providers, and for CQM reporting.
  2. Patient engagement measures would be dramatically revamped:
    • The threshold for “VDT”, (View, Download, or Transmit), would be reduced from 5% to “one patient.”
    • Secure messaging would have to “be enabled,” but there would be no threshold to meet.
  1. To simplify the overall MU structure for practices that have physicians in different stages, all physicians would report on the same measures—a modified set of Stage 2 requirements. Stage 1 providers, however, would be able to exclude measures which go beyond the requirements they were expecting to report.

If you want to ensure that the above changes are included in the final rule, submit a comment to CMS by June 15. CMS receives plenty of comments opposed to particular components of its rules, but specifically asks for positive comments on the features that stakeholders do support.

Providers’ MU Prayers Answered?—Quarterly Reporting for 2015?

Lynn Scheps

Lynn Scheps

VP, Government Affairs & Consulting Services at SRS Health
Lynn Scheps is a leading resource on MACRA, MIPS, and Meaningful Use. She is the SRS liaison with government policy makers. Representing the voice of specialists and other high-performance physicians, she develops strategies to respond effectively to government initiatives.
Lynn Scheps

Meaningful Use

In the inimitable style of government-speak, CMS recently announced its “intention to consider proposals” to shorten the 2015 meaningful use reporting period from a full calendar year to 90 days. While I would advise providers to be cautious about changing their plans until the relevant rule is published (anticipated in the spring), I think it is fair to assume that CMS would not have issued even such a noncommittal-sounding announcement if it were not planning to actually implement this change.

CMS has finally yielded to the relentless lobbying by the AMA and an alphabet soup of other professional societies and HIT organizations, all of which remain concerned about provider readiness and the challenges presented by an insufficient infrastructure to support Stage 2 requirements. Objections to full-year reporting for 2015 date back to last spring, when comments were submitted in response to the (then-proposed) 2014 Flexibility Rule. At that point, CMS adamantly rejected the overwhelming number of comments that recommended—or pleaded for—quarterly 2015 reporting. Currently, however, in addition to this external pressure, the dismal number of Stage 2 attestations to date has got to have CMS worried about the future of its MU program.

The devil, as always, will be in the details:

  • When will the rule be available, and will its timing be early enough to avoid creating the aura of uncertainty that characterized last year’s mid-year revisions? (We are already one month into the 2015 physicians’ reporting period, four months into the hospitals’.)
  • Would quarterly reporting be available to all providers, even those still at Stage 1?
  • What happens to “harmonization’ with PQRS, which remains a full-year program? (This has been one of the reasons CMS has stated for its resistance to quarterly reporting.)

Even more intriguing to me than the change in reporting period is the second of the three proposals enumerated as being under consideration—that is, the intention to modify other aspects of the program to match long-term goals, reduce complexity, and lessen providers’ reporting burdens.” Is it possible that CMS is taking the advice of the AMA and other organizations to increase flexibility, reduce the number of measures, add more choice, and maybe even eliminate the all-or-nothing nature of MU? Wouldn’t that be something!

Let us know what you think by submitting a comment below.

Final “2014 MU Flexibility Rule”—What It Does and Does Not Offer

Lynn Scheps

Lynn Scheps

VP, Government Affairs & Consulting Services at SRS Health
Lynn Scheps is a leading resource on MACRA, MIPS, and Meaningful Use. She is the SRS liaison with government policy makers. Representing the voice of specialists and other high-performance physicians, she develops strategies to respond effectively to government initiatives.
Lynn Scheps

As predicted, the rule modifying meaningful use in 2014—now referred to as “The blog-103014Flexibility Rule”—was finalized basically as proposed. Pleas for future flexibility, however, were rejected. (For a review of the details, read EMR Straight Talk’s Kudos to CMS for MU 2014 Proposed Rule).The good news is that for 2014, many providers can report Stage 1 again instead of Stage 2, and some providers can report using 2011-certified EHR technology instead of 2014 CEHRT.

Providers who exercise any of the flexible options will have to attest to the following statement: “EP was unable to fully implement 2014 Edition CEHRT for a full EHR reporting period in 2014 due to delays in 2014 CEHRT availability,” and they should be prepared to support their decision if they are audited pre- or post-attestation. Potential justifications include—for example—certification delays or implementation backlogs, software problems once the EHR was implemented or upgraded, delayed installation of required integrations/interfaces, insufficient time to make necessary workflow revisions, etc. Provider inaction or delay, financial constraints, inadequate staffing, and the contention that Stage 2 is just too darn hard—while certainly understandable—are not considered legitimate justifications under the rule.

Many of the comments submitted on the Proposed Rule had asked (“pleaded” would be a more accurate word) for flexibility beyond that which was offered. The biggest “ask” in this regard was for quarterly reporting again in 2015, as it is in 2014, rather than full calendar year reporting. CMS rejected that request outright. Undeterred by that response, numerous healthcare professional organizations subsequently submitted their recommendations on the future of meaningful use directly to the Secretary of HHS and the head of ONC—the two organizations responsible for the program. In addition, “The Flex-IT Act” (recently introduced by representatives Renee Ellmers and James Matheson) attempts to mandate a return to 3-month reporting.

While it may be tempting to dream that the bill will become law or that CMS will relent, the only safe assumption at this time is that the 2015 meaningful use reporting period will begin on January 1. Therefore, any physicians who want to pursue meaningful use incentives in 2015 will need to have a 2014-certified EHR in place by January 1 (if they are not already using one), and physicians who will be at Stage 2 next year should devote the next 2 months to preparing to support the increased requirements—installing required interfaces and integrations, implementing Direct, and developing new workflows as needed.

Kudos to CMS for MU 2014 Proposed Rule

Lynn Scheps

Lynn Scheps

VP, Government Affairs & Consulting Services at SRS Health
Lynn Scheps is a leading resource on MACRA, MIPS, and Meaningful Use. She is the SRS liaison with government policy makers. Representing the voice of specialists and other high-performance physicians, she develops strategies to respond effectively to government initiatives.
Lynn Scheps

Doctors clappingYou can hear the sigh of relief—albeit mixed with a bit of uncertainty-driven anxiety—as physicians await publication of the final rule that will modify meaningful use in 2014. By relaxing the timeline, the government has finally acknowledged what so many stakeholders have been arguing for a while: Stage 2 and upgrading to a 2014 Certified EHR simply required too much of providers, too quickly. The paltry number of Stage 2 attestations to date is evidence enough—by May, only 50 physicians had attested to Stage 2; by June, just 447 had succeeded; and by July (mid-way into the year), the number had reached only 972. To put these numbers in context, over 378,000 providers have earned EHR incentives for Stage 1.

The major challenges that prompted the government’s reconsideration of the meaningful use timeline are reflected in the 1,184 comments submitted to CMS—some of which express frustration with the demands of the program in general, but almost all of which wholeheartedly support the proposed changes. (My comments, submitted on behalf of SRS physicians, are available here.) The following are the most common challenges cited:

  • Availability of 2014 Certified EHR Technology (CEHRT) – But it’s not just about the products that are not yet certified or about vendors with insufficient resources to keep up with the demand for implementations. Many of the products that have been certified were rushed out under overly aggressive and unrealistic timeframes, which has left physicians faced with not-ready-for-primetime software.
  • Overestimation of market readiness for interoperability – Sufficient infrastructure is not in place yet, so even physicians who have implemented the DIRECT messaging capability cannot find enough “trading partners” with whom they can connect to share information.
  • Dependence on non-participating parties – It takes an extraordinary amount of effort to successfully coordinate with labs, radiology providers, long-term care facilities, and registries, who are not required to conform to standards promulgated under meaningful use.
  • Reluctance of patients to embrace portal utilization – The two portal measures (patients accessing clinical information and sending messages to physicians) are cited by many commenters as the major obstacle to MU success. Changing patient behavior in this regard is turning out to be even harder to accomplish than previously anticipated.
  • Excessive workflow challenges – Meaningful use necessitates operational changes to practice workflows that are, in the words of one commenter, “daunting, at best.”

The options proposed in the rule are summarized in a handy CMS Decision Tool and include reporting Stage 1 again, instead of Stage 2, and attesting using either a 2011 or 2014 CEHRT.

So what can physicians expect and what would be a good strategy to pursue as they wait for the final rule? CMS is promising—or at least hoping—to publish the final rule in early September. The 60-day comment period ended on July 21, and CMS is obligated to read and consider all of the comments before issuing the final rule. However, I think it is reasonable for physicians to assume that the final rule will be at least as flexible as the proposed rule—maybe even more so. CMS has been asked by many commenters to definitively spell out the conditions under which physicians could avail themselves of the various reporting options, which would address the uncertainty created by the lack of clarity in the proposed rule.

In the meantime, physicians should plan to attest for any quarter during which they have met all of the requirements under one of the options provided for in the proposed rule. It can even be a quarter that precedes the publication of the final rule. They should then aggressively turn their attention to upgrading to 2014 CEHRT—if they have not done so already—and to preparing for Stage 2. Remember: as flexible as the rule may be, it only offers a 3-month reprieve. Physicians who were to be at Stage 2 in 2014 must now be ready to start a full year of reporting on Stage 2, using a 2014 CEHRT, on January 1, 2015.