April 30, 2012

Ms. Marilyn Tavenner
Acting Administrator
Centers for Medicare & Medicaid Services
Department of Health and Human Services
200 Independence Avenue, S.W., Room 445-G
Washington, DC 20201

Re: Medicare and Medicaid Programs; Electronic Health Record Incentive Program – Stage 2 Notice of Proposed Rulemaking (CMS-0044-P)

Dear Ms. Tavenner:

On behalf of The Hospital & Healthsystem Association of Pennsylvania (HAP), which represents approximately 250 member institutions across the Commonwealth of Pennsylvania, we appreciate the opportunity to comment on the notice of proposed rulemaking for Stage 2 of “meaningful use” under the Medicare and Medicaid electronic health record (EHR) incentive programs published in the March 7 Federal Register (CMS–0044–P). While HAP strongly supports adoption and use of EHRs to improve patient care, we have significant concerns with some of the Stage 2 meaningful use recommendations being proposed by CMS, and the 2014 proposed date for the beginning of Stage 2. Before the adoption of additional objectives and more stringent measures, we believe CMS should focus on ensuring successful completion of Stage 1 for the majority of providers and completion of a thorough analysis of its impact.

Congress established the Medicare and Medicaid EHR incentive programs in the American Recovery and Reinvestment Act of 2009 (ARRA) to provide much needed funds to support the transition to an “e-enabled” health care system. HAP shares the goal of the EHR incentive programs: advancing adoption and use of EHRs to improve health care by providing needed financial support. However, the vast majority of hospitals—more than 80 percent—have not yet met Stage 1, due to both the high bar set and market factors, such as increasing costs and limited vendor capacity. Evidence also suggests that the digital divide is widening, with larger hospitals reaching much higher rates of adoption than smaller and rural facilities.

Given the experience to date in Stage 1in Pennsylvania, HAP is concerned that elements of the proposed rule for Stage 2 would stand in the way of a successful program to support widespread adoption by all hospitals in our state. Many of the proposals put regulatory requirements ahead of actual experience with these technologies—an approach that will likely have unintended consequences. HAP’s major concerns and recommendations pertain to the implementation of the Medicare penalty phase, the proposed timing and staging of meaningful use Stage 2, the specific objectives and measures for Stage 2, and the reporting of clinical quality measures through EHRs. Our comments are summarized below.

Medicare Payment Penalties. HAP urges CMS to determine penalties for hospitals paid under the inpatient prospective payment system (PPS) using a reporting year that coincides with the payment year, as proposed for critical access hospitals. The proposed approach to implementing the penalties that begin in fiscal year 2015, is unacceptable because it bases penalties on performance in a prior year, generally with a two-year look-back. This policy unfairly accelerates the date by which PPS hospitals must meet the meaningful use requirements to avoid penalties. We also suggest additional hardship exceptions to avoid unfair penalties on hospitals and eligible providers in certain circumstances, particularly when their vendors fail to deliver as promised, or fail to deliver in a timely fashion.

Timing of Stage 2 and Future Stages. HAP appreciates the proposed one-year delay in the start of Stage 2, but cautions that the delay may not ensure adequate time to transition from Stage 1 to Stage 2 safely and without undue distortions to the market. We recommend three policy changes to ease the transition: delay transition from Stage 1 to Stage 2 until fiscal year 2015; a 90-day reporting period in the first year of Stage 2 and any subsequent stages; and a length of three years for each stage.

Proposed Requirements for Stage 2. Taken as a whole, the proposed requirements for meeting Stage 2 raise the bar too high and are not feasible for the majority of hospitals to achieve. To make Stage 2 more feasible and less burdensome, and to improve the predictability of changes to the program over time, HAP recommends that CMS apply the following policies to all of the objectives and measures for both hospitals and eligible providers:

1. Preserve the existing approach of a core set of required objectives accompanied by a menu set with limited choice among objectives. 
2. Introduce all new objectives through the menu set.
3. Move menu items to the core at the same performance threshold set in the prior stage. 
4. Remove measures that make the performance of hospitals and eligible providers contingent on the actions of others.
5. Ensure that all objectives are supported by scientific evidence and a cost/benefit analysis. 
6. Simplify and field test the meaningful use measures.
7. Remove objectives that would inappropriately duplicate, or contradict, regulations properly established and enforced by other agencies (in particular, Health Insurance Portability and Accountability Act [HIPAA]), and provisions enforced by the Office of Civil Rights.

Pennsylvania hospitals and health systems are particularly concerned with the proposed objective to provide patients with the ability to view, download, and transmit large volumes of protected health information via the Internet (a “patient portal”). HAP believes that this objective is not feasible as proposed, raises significant security issues, and goes well beyond current technical capacity. We also believe that CMS should not include this objective because the Office of Civil Rights, and not CMS, regulates how health care providers and other covered entities fulfill their obligations under the HIPAA, including the obligation to give patients access to their health records.

Proposed Quality Reporting Requirements. HAP strongly urges CMS to defer adding new hospital quality measures to the meaningful use program until Stage 3, so that Stage 2 can be used to make the process viable. HAP shares CMS’s long-term vision of an efficient, accurate and aligned automated quality reporting program. However, hospitals have encountered significant difficulty in using EHRs to report the clinical quality measures required for Stage 1, despite making large investments of financial and human resources. HAP believes that Stage 1 of meaningful use was about getting started with automated clinical quality measurement. The hospital community wants Stage 2 to be about getting it right.

Hospitals across Pennsylvania are deploying EHRs as part of their overall strategies to improve patient care and meet community needs. The flow of meaningful use incentive payments to support these deployments is central to realizing the care transformation objectives of health reform. HAP believes the recommendations presented in this letter will move the nation forward in adoption of EHRs and greater information exchange by establishing achievable requirements for Stage 2 of meaningful use. They also will ensure that Congress’ goal of widespread adoption of EHRs by hospitals large and small, urban and rural, is met by providing much needed federal funds in support of incremental progress.

Pennsylvania’s hospitals want to move toward a health care system where all hospitals meaningfully use EHRs to improve patient care and safety and achieve national goals for improved health. HAP believes the alternatives outlined in this letter, as well as, the American Hospital Association’s (AHA) more detailed comments fulfill the goals of the ARRA legislation to use stimulus funding to advance the use of health IT and offer a constructive and positive pathway to national EHR adoption. We urge you to accept these recommendations and include them in the final rule.

Thank you for the opportunity to share our concerns and comments. If you have any questions about HAP’s comments, please contact me at (717) 561-5344, or pbussard@haponline.org; or Martin Ciccocioppo, vice president, research, at (717) 561-5363, or martinc@haponline.org.

Sincerely,

PAULA A. BUSSARD
Senior Vice President
Policy and Regulatory Services