'Meaningful Use': Is There a Plan B?

by Bruce Merlin Fried, Esq.

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In recent months -- through formal comments to the proposed "meaningful use" (MU) regulation, in articles in online health IT newsletters and blogs, in the halls of various conferences -- there has been a continuous, anxious conversation as to whether the MU regulations, when finally promulgated, would be, simply, too much.

In the service of using the American Recovery and Reinvestment Act's health IT incentive funds for maximum benefit, how far will HHS seek to have providers stretch for the greatest degree of health IT functionality, connectivity and meaningful use?  Will HHS, in the final MU regulation, find that its reach exceeds its grasp? 

That anxious conversation reached a new level when the New York Times earlier this month ran the article, "Doctors and Hospitals Say Goals on Computerized Records are Unrealistic." While much of the article's content was familiar to those in the know, that it appeared in the Times under Robert Pear's byline is particularly significant. Pear is arguably the most highly respected and influential health care journalist in the nation.  His articles are must reads for senior policymakers in every president's administration. That Pear chose to spotlight the MU concerns of physicians and hospitals brings credibility and visibility to their issues.

As Pear reports, concerns have been raised by "tiny hospitals in the Midwest and doctors practicing by themselves," but also by "elite institutions," including "Kaiser, Intermountain, the Mayo Clinic and Partners HealthCare System."  In the Pear piece, some physician and hospital leaders describe the MU proposals floated by HHS as "impossibly high" and "too rigid, requiring too much change in too short a time." They also say that the "risk of failure is great."

Inevitably, the challenge for HHS is to promulgate a rule that honors the congressional intent reflected in ARRA and its electronic health record incentive program. That intent is clearly to have virtually all doctors and hospitals deploy and use EHR technologies. For those who did not follow the stimulus package's legislative path, the Congressional Budget Office projected that, as a result of the incentive program, 90% of physicians would be "meaningful users" by the conclusion of the program. 

I fully expect that the concerns reported in the Times have been heard by HHS and have been carefully considered. In the same article, an administration executive assures that the regulations will "provide flexibility for doctors and hospitals, but [will] push them to elevate their performance." The final MU regulation is expected any day.

In the final analysis, the success of the administration's MU regulation will be measured over several years. Upon the publication of the regulation, it is predictable that there will be a flurry of press releases and analyses from experts, interest groups and politicians. Some will be laudatory, others critical. While some will be for political purposes, many will require careful attention for they will influence the very audience that HHS is seeking to entice. If the consensus of opinion is positive, National Coordinator for Health IT David Blumenthal and other administration health IT policymakers will get the proverbial "two thumbs up."  If, on the other hand, the consensus is negative … well, all will not be lost, but the angle of ascent will be that much more difficult.

So, let's ponder the worst. The final MU regulation is published and the response is, shall we say, less than enthusiastic. What then? Well, here are some scenarios.

1. Be realistic -- From my view, getting 90% of doctors to become meaningful users of EHRs was never a realistic projection. Or, to put it another way, if the final MU regulations are not embraced by everyone, perhaps that should not be seen as negative or even unexpected.

2. Shoot for the tipping point -- It is far more likely that adoption of EHRs will be a function of widespread recognition that use of EHRs is a fundamental standard of care -- particularly in individual communities -- than a result of economic carrots or sticks. Shaping the standard of care at a community level can likely be achieved by getting to the tipping point -- that level of adoption at which point those who have not adopted the use of EHRs will say, "I need one of those to properly care for my patients."

3. Build from strength -- HHS will want to focus on wired communities -- Beacon communities and others where doctors and hospitals are not waiting for incentives but have already been making use of health IT and EHRs. Clearly, ONC is already playing this card, recognizing such communities through the Beacon program. Building off of and moving beyond Beacon communities to shape standards of care regionally and nationally could be extremely powerful.

4. Use the government's purchasing power -- During the previous administration, I fretted that the federal government had done a good job at making the case for the deployment and use of health IT, but never really committed. The power of government, whether as regulator or purchaser was never put to use to accomplish the health IT objectives. Happily, the Obama administration and Congress have committed to using the government's power as regulator to achieve that objective. Why not also make more forceful use of the government's market clout? A better coordinated effort by federal providers of health care, including the Department of Defense, the Department of Veterans Affairs and the Indian Health Service, could have enormous leverage with other providers. Especially if those departments used MU standards as a base, contractually obligating third parties with which they work to likewise employ MU standards. You can see where this could lead.

5.  Work with commercial insurers -- Let's remember, it's not just in the interest of government for there to be a digital health care system. Commercial insurers and other payers have a similar stake in a health care system which, due to health IT technologies, can be better data driven.  So, in the service of getting to the EHR tipping point and in shaping standards of care for communities and the nation, all payers should be coordinating their health IT and EHR efforts.

6. Drop back and punt -- Finally, HHS may need to be prepared to rethink its entire approach. I certainly hope that is not necessary. Given the state of affairs of the health care system and the recent enactment of the Patient Protection and Affordable Care Act, solving our nation's health care problems requires the ability to capture, analyze and then use actionable data. There is no time to lose. On the other hand, a regulatory scheme that is rejected by those it is intended to support will be a blind alley from which we will need to retreat quickly.

Being the inveterate optimist that I am, I believe the MU regulations we will soon be seeing will get it more right than wrong. And, I believe that most hospitals and physicians will recognize that.  But if not, then let's be prepared to move to Plan B.

Michael Milne
Unfortunately, the whole premise of MU is that by getting doctors to use EMRs in a MU way then costs will be greatly reduced and to prove it Medicare/Medicais payments will be cut. The premise is wrong. EMRs will improve some quality care issues but they will not cut costs. Many other governments in the developed world have tried this "computer" option to deal with costs and have been met with almost total indifference by doctors when the program has been voluntary and limited adoption by doctors ignoring most features when it has been manadtory. The US has taken a unique approach - voluntary with MU requirements backed up with penalities. The result is predictable, either a collapse of the program by Congress voting to over ride penality cuts or doctors leaving Medicare / Medicaid in droves. This is going nowhere without the real problem being addressed - the US deficit that can only be solved with higher taxes AND better spending (not less.)

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