Jodi G. Daniel

Congress is considering several adjustments to health IT policy which may have significant impact on the Centers for Medicare and Medicaid Services’ (“CMS”) electronic health records (“EHR”) incentives. On July 20th and 21st, Representatives met to discuss bipartisan legislation to improve the Meaningful Use program and introduced legislation that would authorize a CMS Innovation Center (“CMMI”) project to incentivize EHR adoption by behavioral health providers. The bills may be indicative of Congress’ attitude towards the Meaningful Use program, which has garnered criticism from providers for being burdensome.

On July 21, 2017, the House Committee on Energy and Commerce Subcommittee on Health held a hearing on H.R. 3120 and featured testimony from Cletis Earle, Chairman-Elect of the College of Healthcare Information Management Executives. The bill, sponsored by a group of bipartisan lawmakers, will allow CMS to modify the requirements of the Meaningful Use program in order to give the Secretary additional flexibility in implementing the program. Currently, providers and vendors must comply with the Stage 3 measures and objectives of the Meaningful Use program starting January 1, 2018 or be subject to Medicare reimbursement penalties. Earle argued that the implementation timeline for Stage 3 of the program is too rigorous for providers to meet and may lead to an increase in hardship exemption applications. Provider and vendor groups across the industry have suggested that the HHS Secretary Tom Price delay the Stage 3 obligations, noting that software implementation and cybersecurity issues have made the 2018 deadline unreasonable. Sponsors of H.R. 3120 note that the bill will reduce the burden on providers’ use of EHR systems, allowing providers to focus on care coordination and patient outcomes. In response, CMS noted that the proposed “Medicare Program; CY 2018 Updates to the Quality Payment Program,” which is open for comment through August 21, 2017, would give eligible providers an additional year to implement EHR technology that complies with the 2014 or 2015 edition of Certified Electronic Health Record Technology (“CEHRT”) and offers the opportunity to apply for hardship exemptions for the Advancing Care Information performance category of the Merit-based Incentive Payment System (“MIPS”). For more information, see our update on key proposals of the 2018 Proposed Rule here.

Reps. Lynn Jenkins and Doris Matsui introduced H.R. 3331 which aims to promote testing of incentive payments for behavioral health providers who adopt CEHRT. The bill does not expand the Meaningful Use program to psychiatric hospitals, community behavioral health centers, or mental health and substance use treatment facilities; instead, it creates a CMMI demonstration project the would reward behavioral health providers that implement CEHRT. Behavioral health providers have faced significant challenges in adopting CEHRT systems, lagging behind their primary care, hospital, and physician counterparts. Sponsors of H.R. 3331 note that the legislation will encourage the providers to improve care coordination for patients and integrate patients’ behavioral health management with their physical care. The bill is not yet scheduled for a committee

The Meaningful Use program has been criticized by providers for creating additional administrative burdens and lacking focus on interoperability. The program, which has provided incentives to more than 525,700 healthcare providers, facilitated widespread adoption of certified EHRs since its inception in 2011. In recent years, providers have indicated that the program’s regulations were too rigid to transform health care delivery and technology, particularly given the government’s emphasis on new payment models and value-based care. H.R. 3120 and H.R. 3331 may reflect Congress’ interest in responding to these concerns.  By removing the 2018 deadline for Stage 3 implementation and incentivizing CEHRT adoption through a CMMI project (rather than extending the current Meaningful Use program to behavioral health providers), Congress may be signaling to provider groups that they are willing to be flexible in the administration of the program and will prioritize improvements that further the transformation of health care technology. At minimum, the bills acknowledge the challenges that providers face when adopting digital health solutions and seek to provide appropriate incentives for participation in programs that promote the use of CEHRT. Providers are likely to see significant changes to the Meaningful Use program prior to the January 1, 2018 implementation

It will be important for health care providers, including behavioral health providers, to pay attention to Congressional and Agency action that may unfold in the next few months.