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Why Must CMS Overreach on Rules?

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To prove meaningful use of electronic health records, providers must collect, organize and report data culled from certified electronic health records systems showing that they meet certain measures for quality of care. But they don't send electronic data to the Centers for Medicare and Medicaid Services, as the agency hasn't got the I.T. capability to accept it two-and-one-half years after the HITECH Act became law.

Maybe CMS was too busy mandating that providers upgrade their information technology applications and skill sets on a fast track to bother with getting it own I.T. house in order. And the agency's nonchalance at fixing its I.T. gaps continues, as officials in July proposed that quality measures in Year 2 of meaningful use would again be proven through attestation, as it won't be ready to accept electronic data.

I thought of CMS' propensity for overreaching on rules and having a "Do as I say, not as I do," attitude while reading comments on the proposed Medicare Shared Savings/Accountable Care Organizations rule. CMS is proposing the reporting of 65 measures to calculate an ACO's performance and 28 of the measures are new.

Phrased another way, CMS on March 31 proposed that in only 10 months, participating ACOs not only get organized, develop a governance structure and business plan, and do a thousand other things to get disparate providers working in tight coordination, but to also have the I.T. capability and processes to collect 65 measures, including 28 that currently aren't being used. And, CMS wants 100 percent reporting of all the measures--in Year 1--before an ACO can share in any savings.

In comments on the Shared Savings proposed rule, the American Medical Association urged an alternative to an all-or-nothing approach for reporting on quality measures. "A menu of quality measures would be available from which ACOs could choose, including a number of standard national measures that apply across all ACOs (e.g., care transitions, drug-related and other adverse events, and functional status) as well as measures that an ACO could choose that are applicable to their core patient population." The AMA also asked that CMS use existing quality measures as providers already have processes in place to collect this data.

The AMA and many other organizations told CMS the proposed rule sets the bar too high on a range of issues for a first-year, large-scale ACO program. Hopefully, the agency will back down somewhat, if for no other reason than, surprise, CMS itself likely won't be ready for what's been proposed. Really, if CMS can't accept a modest amount of meaningful use measures electronically by now, is it going to be ready for 65 ACO measures next year?

We've seen this all-or-nothing approach before from CMS, such as its proposed rule for the first year of EHR meaningful use being toned down in the final rule. That's the beauty of the federal rulemaking process, that affected constituencies do get a voice. But it sure would be nice, and save a lot of time and health care dollars being spent on lobbying, if realistic rules were proposed in the first place...


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