Congratulations, Doctor, On Your Federally-Subsidized “Hardship”

At HIMSS 2014, the health information technology’s (HIT) largest annual confab, the bestest-best news we heard from a policy perspective, and maybe even an industry perspective, was the Centers for Medicare & Medicaid Services’ (CMS) dual announcement that there will be no further delays for either Meaningful Use Stage 2 (MU-2) or ICD-10.

Perhaps we should have immediately directed our gaze skyward in search of the second shoe preparing to drop.

As it turns out, CMS de facto back-doored an MU-2 delay by issuing broad “hardship” exemptions from scheduled MU-2 penalties. To wit: any provider whose health IT vendor is unprepared to meet MU-2 deadlines, established lo these many months ago, is eligible for a “hardship” exemption.

Few would disagree with the notion that it’s unproductive to criticize policy without offering constructive ideas to fix the underlying problems.

Here,  the underlying problem is easy to define: it is in point of irrefutable fact fundamentally unfair to penalize care providers for their vendors’ failings—especially when the very government proposing to penalize them put its seal of approval on the vendors’ foreheads to begin with.

CMS’s move to exempt providers from those penalties is correctly motivated, but it seeks to ease the provider pain without addressing its cause.

Instead of issuing a blanket exemption for use of unprepared vendors, CMS should:

  1. Waive penalties only for those providers who take steps to replace their inferior technologies with systems that can meet the demands of the 21st century’s information economy;
  2. Publish lists of health IT vendors whose systems are the basis for a hardship exemption, along with an accounting of how many of those 21 billion dollars have been paid to subsidize those vendors’ products; and
  3. Immediately initiate a reevaluation of the MU certification of any vendor whose products form the basis for a hardship exemption.

This proposal might seem bold, but if we’re truly looking to advance health care through the application and use of EHR, then what I’ve outlined above simply represents necessary and sound public policy. Current practice rewards vendors whose products are falling short by perpetuating subsidies for those products.

The federal government should stop paying doctors to implement health IT that cannot meet the standards of the program under which the payments are issued. That’s just a no-brainer.

An EHR should not be a federally-subsidized “hardship.”

Some brief background is perhaps in order:

Pursuant to the American Recovery and Reinvestment Act of 2009 (the “stimulus”—remember that?), the federal government certified Electronic Health Records (EHRs) for “Meaningful Use,” thereby stamping a government seal of approval on scores of software products.

Across the country doctors quite reasonably assumed that seal carried some meaning, and resolved to spend significant money, time, and effort to both purchase and implement MU-certified EHRs—many of them for the first time—and then to make “Meaningful Use” of them (as defined by the government).

For their pains, the doctors who succeeded in meeting MU metrics received a federal subsidy check. At last report nearly $21 billion in such subsidies have been paid.

Unfortunately, the ROI on that significant federal investment has been mixed to say the least. High numbers of providers on cutting edge health IT platforms who participate in the MU program successfully attest and receive a check. But the overall attestation rate nationally is woefully low (fewer than half).

Much worse: as each subsequent stage of the MU program draws near far too many care providers are notified by their health IT vendors that their “MU certified” systems cannot and will not be ready to transition to the next stage on schedule. Those providers quite reasonably raise a mighty hue and cry, amplified by provider advocates like the American Medical Association, the American College of Physicians, and others, calling for repeated delays in the MU program.

These cries grew louder with the approach of Stage 2, which carries with it not only the threat of withheld incentive payments, but also penalties in the form of Medicare reimbursement cuts.

The latest behind-the-veil MU delay only underscores the degree to which the Meaningful Use program is slowly undermining itself. Track this: The federal government shelled out almost $21 billion (so far!) to help docs pay for a bunch of IT systems that cannot meet the government’s own standards.

Now the federal government is defining as a “hardship” the use of many of the very systems that the federal government subsidized in the first place. Oy. No wonder the Government Accountability Office (GAO) recently issued a report eviscerating the MU program.

The proposal above would both correct for the unintended consequences of current policy and advance one of the few truly bipartisan goals of health reform: modernization of our care delivery system and the information technologies that enable it.

Dan Haley is the vice president of government and regulatory affairs at athenahealth and is a regular contributor to the athenahealth blog.

32 replies »

  1. Please, not so much intelligence and insight in one place. Rob, you are spot on in every sentence you write. No matter what designation it has, the Electronic Medical Record has never been primarily constructed to be a powertool for providing clinical care. The Paper Medical Record once did a better job, but it is rather poor now – for a reason that has nothing to do with paper. Inefficient, redundant, purposeless and meaningless algorithms which reduplicate data and waste time, effort and money EXPLODED into the medical record. Yes, Big Data is here -but ‘supply-side data’ i.e. here’s some data I can record BECAUSE I CAN adds nothing to the care of the patient. Using automation to provide useless data in vastly greater quantities is no help. Someone should be looking at Shannon numbers of meaningful information, and reckon how much of the data is as valueless as a string of 0’s.

  2. So the Federal Government in its continuing attempt to control 1/6th of the US Economy is losing taxpayer money hand over fist through bad programs, poor, incompetent if not criminal management………..Really? Who ever saw this coming?

  3. I agree 100% It’s sad that tax dollars propped up so many purchase decisions to only miss the mark this go round.

  4. All-in-all, this is a very engaging and productive post/thread. Thank you. Interestingly, in many ways follows the anticipated life cycle of the ARRA (stimulus bill) HIT provisions and MU policy.

    At the outset, HIT adoption (and the Federal spending associated with it) was an end unto itself. That justified its inclusion in ARRA after several years of Federal debate about whether and how to fund this element of the healthcare system. This goal was captured in the fairly nominal (though still debated and, often, protested) MU 1 standards.

    Then came MU 2, with its emphasis on facilitating sound medical practice. Don’t just create an EHR, use it to execute clinical processes that comply with guidelines and/or consensus-driven measures. At least that was the idea.

    And soon, as this dialogue aptly points toward, comes MU 3, under which practices will need to demonstrate the ultimate ends of HIT adoption: improved health outcomes. That should be the endpoint of all health system enterprises, as we’re coalescing on in this exchange.

    Personally, I think Mr. Haley is right on, at this stage of the game, to criticize the broad exemptions currently afforded as counter not just to MU 2 but to the longer-term goals of MU 3 and this whole HIT adoption endeavor. The program has abided other considerable flaws as well and continues to veer off course.

    If we’re serious about this, though, then all of us – health IT vendors, providers, patients, etc., and the commentator-sphere – should see the onset of MU 3 as an opportunity to right the ship through strong, patient-centered standards. Here’s looking forward to that.

    By the way, a brief snapshot of the timeline for MU policy and links to underlying regs and guidance is available here: http://www.healthit.gov/providers-professionals/how-attain-meaningful-use.


  5. Those last three paragraphs are damning. It’s a clear indication of much deeper flaws in the assumption that the simple application of technology will fix a problem.

    The real flaws rest not in the EMR products, or even the implementation of MU, but in the central task of health care in the US:to identify problems (diagnoses, ICD codes) and apply a procedure to them (CPT, E/M). EMR systems are not designed with doctors or patients as their main target audience for their data; it is for the government agencies and insurance companies this data is being collected. For physicians, the EMR products are often, therefore, not very usable for true clinical purposes.

    This is a window into so much of what is wrong on a bigger scale, in that it shows how the patient has moved far from the center of care, and now is more of a commodity from which to get data and justify billing. Patient outcomes have little to do with this, a reality that most patients in the system realize pretty quickly.

  6. “Re. satisfaction, I’d point again to the KLAS survey, which is (I think) pretty well acknowledged as the most comprehensive, impartial health IT survey of care providers out there.”

    How sad is it that KLAS is the best thing out there?!

  7. Yes. The most relevant to this question being our MU attestation rate, which is roughly double the national average. Re. satisfaction, I’d point again to the KLAS survey, which is (I think) pretty well acknowledged as the most comprehensive, impartial health IT survey of care providers out there. I did not mean to let this devolve into a yay athena session though. We approach EHR and our related services in a fundamentally different way from most of our industry, but I assume that others who share our general approach have similar outcomes. The point, again, is that those who cannot meet the standards of the program under which subsidies are awarded ought not to receive federal subsidies.

  8. “Better to start with a small test project, or several of them, and figure out what works first”

    That would be far too scientific.

  9. “As obvious, I would think, is the fact that if we were not so far outperforming the majority of our industry”

    In terms of empirically significant improved clinical outcomes and patient satisfaction among athenahealth clients relative to the users of other EHR platforms?

  10. I think part of it was asking vendors to develop and providers to buy products before future requirements were even known. MU1 products bought before MU2 requirements released – how many are able to predict what is required in the future, whether you’re a vendor or a provider? Even countries, such as the UK, invested in products that didn’t work as expected, perhaps because they didn’t think far enough in advance or account for unintended consequences. Better to start with a small test project, or several of them, and figure out what works first before requiring mass numbers of providers to lay out $$.

  11. Dan,

    Thanks for commenting. I doubt you will be surprised that I take issue with your take…

    First, does self-interest automatically presume disingenuousness? I’m not sure why it should. There is a reason, after all, that I (and we) put forward these proposals publicly, with our names and affiliations right there for the world to see, rather than in back rooms (accessed via campaign contributions or otherwise). Our self-interest is obvious. It can and should be taken into account in evaluating our policy positions.

    As obvious, I would think, is the fact that if we were not so far outperforming the majority of our industry we obviously would not make the proposal I’ve made (we are far from the only ones rating our performance that way, BTW: http://ehrintelligence.com/2014/02/03/epic-falls-to-athenahealth-as-2013-%E2%80%9Cbest-in-klas%E2%80%9D-ehr-vendor/ ).

    Is our call for our under-performing competitors to lose their federal subsidies self-interested? Of course it is. Is it also good public policy to end federal subsidies for vendors and technologies that have demonstrated they are incapable of meeting the (relatively low!) standards of the program under which the subsidies are doled out? Yes, it is. The two (self interest and sound policy) are not mutually-exclusive.

    Nor, I’d argue to my last breath, is the profit motive and quality and efficiency in healthcare–any more than those two things are mutually-exclusive in any other sector of the economy.

    Thanks again for the comment.

  12. It’s an interesting argument – but more than a little disingenuous coming from a heavily vested (and invested) interest.

    @athenahealth has a market cap today of over $6B – at least some of which was captured through the very program Dan is so critical of here (ARRA/HITECH – and the resulting program of Meaningful Use).

    @jonathan_bush made personal campaign contributions of about $60K in the 2012 presidential election cycle ( http://hc4.us/1cXGA2Z ) to the Republican ticket and there are no healthcare debates today that aren’t first viewed through the political lens.

    The healthcare system we have (no fault of athenahealth or Dan or Jonathan) has been optimized around revenue and profits – not safety or quality (let alone access). We have the heatlhcare system we’ve built (and continue to fund/support) – but that’s not the system we need going forward.

    Sadly – the best quote I’ve seen over the last 5 years – comes from a Republican – Governor of Florida Rick Scott:

    “How many businesses do you know that want to cut their revenue in half? That’s why the healthcare system won’t reform the healthcare system.”

    The debate around ARRA/HITECH and MU is really around the edges of healthcare reform. I don’t see how we will make much progress until we get to the core of healthcare reform – cost – but that debate isn’t remotely around who’s using which version of crappy software.

  13. So you are arguing with the outcomes we are witnessing, or the lack of intention?

  14. “Creating chaos and failure is absolutely intentional by CMS.”

    Well, someone has to win the Stupidest Comment of the Day Award.

  15. “The proposal above would both correct for the unintended consequences of current policy and advance one of the few truly bipartisan goals of health reform: modernization of our care delivery system and the information technologies that enable it.”

    The consequences are not unintended. Creating chaos and failure is absolutely intentional by CMS. I thought racketering was illegal, but perhaps HHS got a hardship exemption.

  16. I agree, Bobby. And many of those same free market ideologues are clueless buffoons when it comes to healthcare. Their version of the market place is “free” as long as they get what they want when they want it. And most of them are too stupid to acknowledge that, when you combine direct federal payments for medical care with the massive tax subsidies, this is anything but a free market.

  17. “more government time and money wasted on an initiative that neither the government nor industry was ready to undertake”

    Hard to argue with that, Vik. But, the “non-distorted free market” has always had its own narrow, socially suboptimal, iteratively short-term-horizon agenda — mainly maximizing profit.

    Medical economist JD Kleinke, 9 years ago:

    “We spend $1.6 trillion a year on health care—far more than we do on personal financial services—and yet we have a twenty-first-century financial information infrastructure and a nineteenth-century health information infrastructure. Given what is at stake, health care should be the most IT-enabled of all our industries, not one of the least. Nonetheless, the “technologies” used to collect, manage, and distribute most of our medical information remain the pen, paper, telephone, fax, and Post-It note.

    Meanwhile, thousands of small organizations chew around the edges of the problem, spending hundreds of millions of dollars per year on proprietary clinical IT products that barely work and do not talk to each other. Health care organizations do not relish the problem, most vilify it, many are spending vast sums on proprietary products that do not coalesce into a systemwide solution, and the investment community has poured nearly a half-trillion dollars into failed HIT ventures that once claimed to be that solution. Nonetheless, no single health care organization or HIT venture has attained anything close to the critical mass necessary to effect such a fix.

    This is the textbook definition of a market failure. All but the most zealous free-market ideologues recognize that some markets simply do not work.”


  18. You raise a boatload of appropriate questions. I have never liked the phrase “Meaningful Use” (despite having worked in the program for one of the RECs). “Meaningful” to WHOM?

    I know: Asked and Answered.

    Maybe it’s just semantic nit-picking, but words matter. “Effective Use,” from the perspective of better clinical (and operational) outcomes, is what we all want.

    May We Live In Interesting Times, Rickie Bobbie…


  19. This post is very useful, but also heart-sinking because it contains every word or phrase that scares the hell out of clear-thinking taxpayers, like yours truly: subsidy, delay, hardships, federal payments, cannot meet standards.

    My take away is straightforward: more government time and money wasted on an initiative that neither the government nor industry was ready to undertake, but it needed to be done fast and now because of the ready availability of taxpayer cash, of which, of course, we all know there is an endless supply.

    I say fine and shut down problematic vendors, fine the providers who use incompetent vendors, fire the CMS officials who concocted this bulls**t approach, and facilitate patient access to trial lawyers so that we can create a new class of actionable harms resulting from care or privacy breaches by both the incompetent vendors and complicit providers. There is no “good government” to be had in this scenario. That commmodity is being reduced daily.

  20. Thankfully, I don’t have to participate in these mandates. But it is easy to imagine the extreme frustration from doctors( many of whom are not IT savvy) to participate in a program that requires a “meaningful EHR system” to document “meaningul use”, and have the system not make the grade. Are the rewards worth the cost to practices who have to constantly upgrade their systems? Are there systems that should function indefinitely for the intended use? Is there any evidence any of this will ultimately benefit patient care? How is all this going to play when we go to a totally different coding system?
    As Mr. Gladd has so poignantly illustratedin the past, it seems like a perfect storm to me.

  21. Not that I am aware of… though it seems a matter of basic transparency and good government to me, given the dollars involved.

  22. @Dan

    “Publish lists of health IT vendors whose systems are the basis for a hardship exemption …”

    Do any unofficial lists like this exist?

  23. THCB does not accept “suggested” or sponsored posts. Dan makes a great point about certification here.

  24. Great point. Bottom line: If you want anybody to take certification seriously you’re going to have to take it away from people who make products that don’t make the grade ..