OP-ED

How to End MACRA, Meaningful Use and ONC Certified EHRs Programs/Mandates

flying cadeuciiWhile the Federal Government’s promotion of EHRs via the HITECH act has been successful at increasing the prevalence of EHRs, their continued advocacy of Certified EHRs, Meaningful Use (MU) mandates and MACRA seriously impedes innovation in health information technology realms. For this reason, I think it is time for our Federal politicians to alter provisions of the HITECH ACT so as to end all legal mandates resulting in Certified EHRs, MU and MACRA.

Unfortunately most medical societies have been complicit with the Federal Government / ONC by making encouraging public statements about the evolution of MU into MACRA, and refusing to advocate for an alteration in Federal law which would end the legal underpinnings of MU, MACRA and ONC Certified EHRs. It is my opinion that these organizations are fearful of antagonizing the Federal Government and concerned that if they did such advocacy work, they would be excluded from influencing ONC’s evolution of the HITECH mandates.

Given the failure of these organizations to take a definitive stand against MU, MACRA and ONC Certified EHRs, it is time for the physician to take control of the reins of their organization and use their organization’s influence to end these HITECH mandates.

In that vein, I have submitted the below resolution to the Massachusetts Medical Society which, if passed by the next House of Delegates (HOD) meeting, will make it the official policy of the MMS to use it’s political influence to end these Federal mandates. Of course, the resolution will have to get through several procedural hurdles before it is presented to the MMS HOD members for a vote.

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Resolution to End MACRA, Meaningful Use and ONC Certified EHRs Programs/Mandates

Whereas: The High Tech Act of 2009 mandated the creation of the Office of National Coordinator (ONC), Meaningful Use, MACRA and “Certified” EHRs as a means to promote the adoption of electronic health records (EHRs) by the medical community; and

 

Whereas: The High Tech Act of 2009 has successfully resulted in the wide spread adoption of EHRs in the Commonwealth of Massachusetts; and

 

Whereas: The Federal Government’s continued promotion of ONC Certified EHRs inhibits innovation in the health information technology realm (ref 1,2); and

 

Whereas: Federal and State financial penalties will force physicians to utilize ONC Certified EHRs; and

 

Whereas: The MMS HOD (May 2016) adopted “Principles Governing the Implementation of Health Information Technology” and the following resolves will help advance those Principles; and

 

Whereas: The MMS Strategic Priorities for 2016–2017 include “Physician advocacy: Ensure the MMS is a productive and credible voice at the state and federal level for physicians in any practice environment or setting” and the following resolves will advance those priorities;

 

RESOLVED, That the MMS will use its influence on our State and Federal Representatives to end all legal requirements and financial penalties on the medical profession arising from the High Tech Act of 2009, Meaningful Use, MACRA and ONC’s Certified EHR programs and, be it further

 

RESOLVED, That the MMS will encourage our Massachusetts’ Senators Elizabeth Warren, Senator Edward Markey and Representatives Richard Neal, Jim McGovern, Niki Tsongas, Joseph P. Kennedy III, Katherine Clark, Seth Moulton, Mike Capuano, Stephen Lynch and Bill Keating as well as President Barak Obama to immediately introduce Federal legislation to legally end the Meaningful Use, MACRA and ONC’s Certified EHR program

references:

1.Halamka, John, The Five Year Plan.  The Health Care Blog June 7, 2016, https://thehealthcareblog.com/blog/2016/06/07/five-year-plan/

  1. Halamka, John, FUD Part II: The Return of Fear, Uncertainty and Doubt. The Health Care Blog June 13, 2016, https://thehealthcareblog.com/blog/2016/06/13/fud-part-ii-the-return-of-fear-uncertainty-and-doubt/

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I would like to ask all physicians to use their influence (via email, blogs, Twitter, LinkedIn and other social media) to encourage innovation in the HIT realm by demanding that our Federal representatives alter the requisite laws to end the ONC’s Certified EHR, MU and MACRA programs and specifically limit the Federal Government’s role in the HIT realm to promulgating standards and security guidelines which will facilitate the exchange of medical information between EHRs, medical apps, patients and providers.

Hayward Zwerling, M.D.

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12 replies »

  1. While I believe that the correct way to overturn all of these laws is by legislative means, it would appear that we are currently left with pursuing these by legal means as a group. Both the SS and Medicare acts were challenged as violations of constitutional law. Due to the length of time that they had been in practice and had become well established programs, the Supreme Court upheld those laws-Medicare Act having been passed in 1965, (believe that decision was perhaps 2010). But now we have legislation passed that is in violation of the Medicare Act itself. The Medicare law was passed with the stipulation that government would not interfere with the practice of medicine. The relevant clause, titled “Prohibition Against Any Federal Interference,” reads as follows:
    Section 1801. Nothing in this title shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided, or over the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services; or to exercise any supervision or control over the administration or operation of any such institution, agency, or person.

    Everyone of these laws is in direct violation of that section of Medicare law and should be challenged in a court of law by all providers. The longer it persists without legal challenge, the more inroads can be made into government interference with medical practice. A disconcerting bipartisan bill has been recently introduced in the Senate regarding patient compliance with taking their medications on the basis that if their medications aren’t taken as prescribed and monitored by Pharmacy Management Companies, they are more likely to cause increased medical costs. The corollary to this is that the physician would be penalized via payment for performance programs.

    I believe it’s critical that we organize promptly, not to try and change the laws to make them easier to use, but to legally challenge their validity at all.

  2. “just stop accepting Medicare patients.”
    __

    Right. The disproportionately high UTIL demographic. The cohort that keeps the doors open. Makes perfect sense.

  3. An increased percent of physicians are employed; in MA, > 80% are employed. Obviously, the employed physician does not have the option to choose which insurances they accept.

  4. Unfortunately, I do not think anyone in ONC CMS or Congress is going to do anything about this mess. I really feel the only way to deal with all this is to just not participate. We do not participate and its the best decision we ever made. We still use an EHR but its not certified and we have customized it to our workflow. Its so much better to take the penalty rather than participate. Once CMS and ONC sees that no one is participating in their madness, they will be forced to change. Its tough for physicians to ‘not’ participate but its the only way to get their attention. If that is not feasible then just stop accepting Medicare patients.

  5. ” As a practicing clinician for 30 years, I can honestly say that it’s time to leave the profession if we stay on the current trajectory.”

    The last sentence you referenced. I daresay many are considering it.

  6. EHR problems seem to stem more from their rigidity, not the lack of trust. The IT solutions seem to be made in order to comply with paranoid regulations, not to be comfortable in use.

  7. Addendum to my posting below…

    There was a interesting article published in the Mayo Clinic Proceedings: Relationship Between Clerical Burden and Characteristics of the Electronic Environment With Physician Burnout and Professional Satisfaction, which is available online http://dx.doi.org/10.1016/j.mayocp.2016.05.007

    Although the study did not specify whether the practices the physicians were using a Certified EHRs, I think it is overwhelmingly likely that the vast majority of the surveyed practices were using Certified EHRs.

    Here are some findings from the study…
    – Of 5358 physicians who used EHRs, 36.0% were satisfied or very satisfied with their EHRs and 43.7% were dissatisfied or very dissatisfied.
    – Of 4847 (23.0%) physicians who used CPOE, 38.1% were satisfied or very satisfied with CPOE and 41.9% were dissatisfied or very dissatisfied.
    – Of 5320 EHR users, 36.3% agreed or strongly agreed that EHRs had improved patient care and 41.0% disagreed or strongly disagreed.
    – 37.3% agreed or strongly agreed that the amount of time spent on clerical tasks related to direct patient care was reasonable, and 46.5% disagreed or strongly disagreed
    – 25.7% agreed or strongly agreed that the amount of time spent on clerical tasks indirectly related to patient care was reasonable and 55.8% disagreed or strongly disagreed.
    – 23.0% believed that EHRs had improved their efficiency, and 62.5% disagreed.

    The article concludes: … In their current form and implementation (.. EHRs).. have had a variety of unintended negative consequences that reduce efficiency, increase clerical burden, and increase the risk of burnout for physicians.

    Clearly, this data would suggest that the Federal Government decision to force/coerce physicians to use Certified EHRs is not supported by the data. Given this, it is more rational for the Federal Government to allow the individual physicians to use the tools they deem is best for their practice and restrict the Federal involvement in HIT to promulgating standards of interoperability, security and vocabulary.

    Hayward

  8. The vast majority of physicians want to provide medical care which meets the needs of their patients and is done efficiently and does not bankrupt the healthcare system.

    Providing medical care is a deceptively complex task. One starts by trying to apply “treatment guidelines,” while recognizing the “quality” and “durability” of these guidelines is variable. The physician must then interpret the guidelines in deference to the patient’s preferences, which may be influenced by the patient’s moral values, financial restrictions, patient comprehension and the input of family members. In a substantial number of situations, one cannot apply these guidelines blindly as each patient’s situation is unique.

    And this is all supposed to be done during a very brief office visit, while the physician is juggling phone calls from other colleagues, patients and requests for assistance from the ancillary medical professionals etc.

    The design of the certified electronic health records have impeded the physician’s ability to meet the needs of their patients by adding on another task which must happen as part of the patient’s office visit. Meaningful use has required physicians to ask their patients clinically irrelevant questions in order to meet the mandates of meaningful use and complete innumerable “checkboxes” in these certified electronic records for the same reason. Needless to say, this interferes with the ability of the physician to focus on the patient and has no clinical value to the medical encounter. Further, these unnecessary and clinically useless task interferes with the ability in the physician to innovate and figure out how to provide better, more cost-effective care to the patient. Some will argue these tasks can be done by ancillary personal – that is not correct, as the ancillary staff is already fully busy.

    I have no problem with the Federal government mandating that physicians demonstrate that they provide value for the Federal healthcare dollar, which now accounts for more than 50% of all healthcare spending. And I fully concur with the healthcare policy experts that it is absolutely essential we get the cost of healthcare down and the quality of healthcare up, as the cost curve alone is unsustainable in the long run. As there is no obvious “right” answer to the cost/quality dilemma, the Federal government has created multiple demonstration projects, which paid physicians in different ways, trying to figure out a solution to the cost/quality problem. (There was an interesting article in the New Yorker magazine, maybe a year ago, which looked at how the Federal government, in the early 1900s, tried to get farmers to adopt modern farming techniques, as a means to increase society’s disposable income and thereby stimulate the economy. Conservative politicians complained that the Federal government should have no role on influencing the farming sector. In the end, the Federal government create a demonstration project in Georgia, which was then adopted by the adjacent farmers, and then spread around the country. Very analogous to what’s going on now in healthcare except that we don’t know what is the correct model, thus the ongoing payment experiments.)

    So, the short answer to your question is: Yes, the Federal government needs to end all policies which impede a physician’s ability to take care of their patients.

    Sorry for the rant.

    Hayward

    PS
    To get a perspective on MACRA, see Halamka’s posting “A Deep Dive on the MACRA
    NPRM” (https://thehealthcareblog.com/blog/2016/05/05/a-deep-dive-on-the-macra-nprm/). Note the last sentence.

  9. Their purpose is to : get all the EHRs outputting interoperable data that the government can use.

    1.Your purpose is to stop a useless grueling exercise that is spoiling the efficiency of physicians and harming HIT innovation from the ground up.

    Hayward, Is this roughly the way you see it?

  10. “…use it’s [sic] political influence…”

    Which is likely nil. But, President Trump® will make everything Terrific. Patience.

    All snark aside, notwithstanding that I worked in the MU program at one of the RECs, I routinely bit the hand that fed me: http://ClinicMonkey.blogspot.com

    The EHR Cert program is a joke.

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