Arguing that too many well-meaning providers are facing financial penalties from meaningful use, the American Hospital Association called on the Centers for Medicare and Medicaid Services this week to offer more flexibility.

Specifically, AHA says hospitals that meet 70 percent of meaningful use requirements should be deemed as having complied with the program.

With the current "all-or-nothing approach," writes Ashley Thompson, AHA's senior vice president of public policy analysis and development, "failure to meet any one of the requirements under the Medicare and Medicaid EHR Incentive Programs has meant a provider would not receive an incentive payment; more recently, it has meant a provider would be penalized."

[Also: Hospitals press HHS on meaningful use]

Given the huge complexity and high hurdles of meaningful use, the fact that a hospital missing a given threshold by small amount leads to overall failure is "unfair to providers that make good faith efforts to comply," according the March 22 letter to CMS Acting Principal Deputy Administrator Patrick Conway, MD.

CMS has told AHA that it doesn't have the statutory authority to offer anything less than that absolutist approach, according to the letter. But AHA offers a legal analysis that suggests that's not true: "We believe that CMS possesses the authority to eliminate the all-or-nothing approach to meaningful use and that the agency should do so."

Among the arguments put forth by CMS for the necessity of an all-in requirement: The law requires more stringent MU measures to improve quality over time; certain measures capture policies, such as health information exchange, that are specifically required by statute; use of a "qualified EHR" must meet all the requirements, not some, in order to meet the law's objectives.

The agency has also argued that a more flexible framework wouldn't reduce providers' reporting burden anyway – a contention with which AHA "respectfully disagrees" but points out isn't statutorily binding anyway.

"We strongly believe that CMS is not legally required to maintain its  all-or-nothing approach to meaningful use," AHA argues, but instead has "ample legal authority" to adopt a more forgiving approach like the 70 percent threshold it suggests.

"This flexibility would support providers who have implemented IT functionality but may not have optimized each function sufficiently to meet the full set of requirements in the EHR Incentive Program in order to avoid a payment adjustment."

Twitter: @MikeMiliardHITN
Email the writer: mike.miliard@himssmedia.com

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