March 29, 2012
Marilyn B. Tavenner
Acting Administrator
U.S.
Department of Health and Human Services
Hubert
H. Humphrey
Building, Room 445-G
200
Independence Avenue, SW
Washington,
DC 20201
Dear Acting Administrator Tavenner:
The
undersigned organizations are writing to express our profound concern about the
imminent storm that is about to occur due to simultaneous implementation of
multiple programs that will create extraordinary financial and administrative
burden as well as mass confusion for physicians. These programs include the value-based
modifier, penalties under the electronic prescribing (e-prescribing) program,
physician quality reporting system (PQRS) and electronic health record (EHR)
incentive program, along with the transition to ICD-10.We
urge CMS to re-evaluate the penalty timelines associated with these programs
and examine the administrative and financial burdens and intersection of these
various federal regulatory programs.We also urge CMS to use its discretionary authority provided by Congress under
these programs to develop solutions for synchronizing these programs to
minimize burdens to physician practices, and propose these solutions in the
physician fee schedule proposed rule for calendar year 2013. The Department of Health and Human Services
(HHS) recently announced its continued commitment to complying with President
Obama’s January 18, 2011, Executive Order calling on federal agencies to
reassess and streamline regulations.
This is a perfect opportunity for HHS to make good on its commitment to
improve the regulatory climate for physicians.
Physicians face the ongoing threat
of steep Medicare physician payment cuts due to the flawed sustainable growth
rate (SGR), including a 27 percent cut (according to Congressional Budget
Office estimates) on January 1, 2013, along with a 2 percent deficit reduction
sequester beginning in January 2013.
These cuts alone will take a huge toll on physician practices and
patient access to care. Yet, this is
only the beginning. While medicine is
pleased that you have announced that CMS is undertaking a process to initiate a
delay of ICD-10, we are anxious to hear the details of the proposal. Absent a delay, physicians will be
transitioning to ICD-10 (currently scheduled for October 1, 2013), while at the
same time spending significant time and resources implementing EHRs into their
practices. Physicians are also facing
present and future financial penalties if they do not successfully participate
in multiple Medicare programs, including the e-prescribing program, the EHR
meaningful use program, and the Physician Quality Reporting System (PQRS). In addition, physicians are being required to
meet separate requirements under these three overlapping health IT programs and
have been and will be unfairly penalized if they decide to participate in one
program over the other. These burdens
are coming at the same time that physicians are trying to undertake meaningful
payment and delivery reforms.
Further, in the midst of this
storm, CMS has decided to back-date the reporting requirements under the
penalty programs so that a physician will face a penalty based on activity in a
year prior to the year of the penalty specified in the law. For example, CMS is basing the 2012
e-prescribing penalty on a physician’s e-prescribing activity in 2011. Also, although the law requires that
penalties under Stage 2 of the Medicare/Medicaid meaningful use EHR incentive
program begin in 2015, CMS is proposing to back-date the penalty program so
that physicians who do not successfully meet meaningful use requirements in
2013 or by October 3, 2014, would face a penalty starting on January 1, 2015. Further, CMS is basing the 2015 PQRS penalty
on clinical quality measure reporting that occurs in 2013, and is using the
2013 year as the basis for the payment adjustments for the 2015 value-based
payment modifier. CMS has essentially
pushed up deadlines for participation by a full year or more, and this
back-dating policy will subject a significant number of physicians to financial
penalties and slow down the adoption and implementation rates of EHRs. The physician community strongly disagrees
with CMS’ interpretation of these timelines.
In the wake of this
onslaught of overlapping regulatory mandates and reporting requirements, HHS
has a responsibility to review all of these programs and take the opportunity
to ease the burdens on physician practices. We urge
that CMS, in the physician fee schedule proposed rule for calendar year 2013,discontinue its plans to back-date
penalty programs, while better synchronizing the incentive and penalty programs
so that physicians who successfully participate in one program are protected
from penalties associated with the other programs. Relief from this back-dating policy will also
avoid the reality that physicians could receive an incentive payment and a
penalty in the same year for the same program, which undermines any incentive
for greater reporting or use of health IT.
We also urge CMS to establish in the proposed rule exemption categories
to protect physicians facing hardships from penalties.
Thank you for considering our recommendations. We look forward to discussing these urgent
matters with you, as well as working with CMS to better align all of these
programs and remove unnecessary burdens for physicians.