Is a healthcare provider obligated to comply with a regulation if the regulator has made compliance impossible?
This is the question hospice-based palliative care providers are asking themselves this month after listening to CMS-sponsored educational webinars about a provision of the MACRA regulation (see sidebar) that took effect this month. Along with their hospital-based peers, they are suddenly required to submit quality data using certified electronic medical record software, which does not exist.
On October 14, 2016, the U.S. Department of Health and Human Services (HHS) announced a final rule to implement key provisions of the bipartisan Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) in a new program called the Quality Payment Program. The Program advances Medicare’s value-based transformation for hundreds of thousands of physicians and other eligible clinicians by tying these payments to quality patient care. A number of the provisions in MACRA directly relate to the use of certified electronic health record (EHR) technology and health information technology (health IT), including the Advancing Care Information performance category under the Quality Payment Program. The Advancing Care Information category will modernize, streamline, and replace the Medicare EHR Incentive Program for eligible professionals (also known as “Meaningful Use”). The Quality Payment Program advances the use of certified EHRs and health IT as tools to improve the flow of health information among clinicians and, ultimately, improve the quality of care provided to patients.
Implemented through the Office of the National Coordinator for Health Information Technology, MACRA is intended to gradually convert payment standards from clinical activities to patient outcomes. The latest implementation of the law requires providers of palliative care services to submit quality reports via certified EMRs. Its language exclusively mentions the activities and obligations of "clinicians" as it is based on legislation aimed at physician practices and hospitals that offer palliative care services. "Agencies" offering palliative care are not mentioned but apparently fall under the regulation.
This is where the problem lies. More home health agencies and hospices provide palliative care than hospitals do and they all use software that has never been involved in the certification process. Home Health and Hospice were excluded from the financial incentives that reward hospital and physician software vendors for winning certification so vendors did not subject themselves to the expense of seeking certification.
Except for two of them
Digging into our archives, we found that two home health and hospice software vendors actually did go through the expensive, time-consuming process and won certification for their applications.
Thornberrry, Ltd. went through the Certification Commission for Health Information Technology which, before it was disbanded in 2014, had a post-acute EMR category. CCHIT was an ONC Authorized Testing and Certification Body. What made the process so arduous, Thornberry CEO Tom Peth told us, was that home health was not separated out as a sub-category. That meant his developers had to add features to their NDoc software that are needed in skilled nursing facilities but irrelevant to home health. That obstacle alone may have kept other vendors from attempting the process.
HealthMEDX, the Springfield, Missouri-based company now owned by NetSmart, went directly through ONC, the Office of the National Coordinator of Health Information Technology, to earn its certification in six specific categories (chpl.healthit.gov/#/product/7107).
Help from many quarters
Educational webinars were conducted for palliative care providers by Stacey Sinclair of the Center to Advance Palliative Care. This organization is well-aware of the problem and has been working closely with CMS to help them understand the challenge their requirement presents to hospice-based palliative care providers. So far, CMS has not offered any relief, taking the attitude that rules are rules and they will just have to deal with it. Ms. Sinclair told us there are a few reasons for hope:
Naturally, frustration rides high among these providers. Some have told us that they are faced with two bad choices, either convince their current vendor to spend tens, perhaps hundreds, of thousands of dollars to get their existing applications certified or switch vendors. Either path takes time.
On the bright side, they also told us they are working hard with CAPC and other other advocate organizations, plus state and national associations, to get CMS to understand the Catch-22 situation they have inadvertently created. We will keep an eye on this dilemma for our readers, whose feedback is welcome. firstname.lastname@example.org
*See our interview with Ms. Sinclair in an upcoming HCTR issue for more detail on and definitions of these points.
©2016 by Rowan Consulting Associates, Inc., Colorado Springs, CO. All rights reserved. This article originally appeared in Tim Rowan's Home Care Technology Report. homecaretechreport.com One copy may be printed for personal use; further reproduction by permission only. email@example.com