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RPA Comments on Meaningful Use Stage Two Proposed Rule

Creation/Revision Date: May 07, 2012

Marilyn B. Tavenner 
Acting Administrator 
Centers for Medicare and Medicaid Services 
Department of Health and Human Services 
Room 445-G, Hubert H. Humphrey Building 
200 Independence Avenue, SW 
Washington, DC 20201 

Subject:     Medicare and Medicaid Programs; Electronic Health Record
Incentive Program--Stage Two Proposed Rule; CMS-0044-P; RIN0938-AQ8

Dear Ms. Tavenner: 

The Renal Physicians Association (RPA) is the professional organization of nephrologists whose goals are to ensure optimal care under the highest standards of medical practice for patients with renal disease and related disorders. RPA acts as the national representative for physicians engaged in the study and management of patients with renal disease. We are writing to provide comments on selected portions of the Medicare and Medicaid Electronic Health Records (CMS EHR) Incentive Program Stage Two Proposed Rule. 

RPA appreciates the scope of the task that CMS is seeking to complete in promoting the use of EHR’s, and we recognize that the Agency is legislatively mandated to proceed as expeditiously as is reasonably possible in doing so. However, and as stated in previous comments on meaningful use, RPA believes that CMS is creating requirements that will be difficult if not impossible to achieve, not only because they hold the provider responsible for the actions of other parties, but also because they assume the accessibility of technology and products that are currently unavailable. We urge CMS to account for these considerations when finalizing the Stage Two rule. 

Most importantly, we urge CMS to address the significant obstacle uniquely facing nephrologists in their efforts to participate in meaningful use. In short, due to the structure of the end-stage renal disease (ESRD) monthly service codes and the meaningful use program’s “50% rule”, nephrologists are required to duplicate virtually all of their documentation to demonstrate meaningful use. As such, RPA urges CMS to address this issue so that providers of care to the approximately 400,000 Medicare beneficiaries with ESRD can participate in the meaningful use program. 

In addition to the comments noted below, RPA also participated in the development of the AMA’s comments to CMS on the Stage Two rule on behalf of organized medicine. RPA is particularly supportive of the following points outlined in the AMA-coordinated response:

Use of reasonable exclusions for measures that have little relevance to a physician’s routine scope of practice
Avoidance of high thresholds for measures that cannot be met due to the unavailability of affordable, vetted tools or useful bidirectional health information exchanges;
Elimination of measures that require adherence by parties other than the physician (such as the requirement that at least 10% of the providers’ patients actually view, download or transmit their personal health information (PHI); this is discussed in greater detail below;
Encouraging increased participation in meaningful use by allowing physicians to demonstrate a ‘good-faith’ effort at participation (such as not requiring participants to meet all 20 measures by using an opt-out option); and
Creation of an open, transparent, and robust appeals process in both the meaningful use and e-prescribing programs.
Nephrology Impediment to Participation in the CMS EHR Incentive Program 

RPA Concerns

Participation in the meaningful use program requires that at least 50% of the eligible professionals’ patient encounters during the reporting period occur in a location(s) or practice(s) equipped with a certified EHR. An unintended consequence of this requirement is the barrier to participation it has created for nephrologists. Typically, nephrologists provide care within a dialysis facility to patients with end-stage renal disease (ESRD), and given the complexity associated with this chronic condition, these patients are often seen weekly in the dialysis facility. Unfortunately, dialysis facilities are not considered eligible providers within the context of the CMS EHR Incentive Program. 

This confluence of facts requires the nephrologist striving to demonstrate meaningful use to bring his/her certified EHR into the dialysis facility, so that the 50% rule can be accommodated within the framework of the ambulatory rules for physician eligible providers. However, this also creates duplicative data entry (with data being entered in both the physician’s EHR and the dialysis facility information system), resulting in not only unnecessary administrative overhead, but also potentially could be the cause of medical errors that otherwise would not occur. Ultimately, this scenario creates a substantial barrier to both adoption and meaningful utilization of the physician EHR. At the present time, most physicians’ EHRs cannot communicate with dialysis facility electronic systems, making the necessary data collection very time consuming and difficult. 

RPA Proposed Solution

An interim solution to this problem would be to incorporate the unique patient encounter concept within the eligibility requirement. The problem is substantially mitigated if the participation requirement is interpreted as “at least 50% of the eligible professional’s unique patient encounters during the reporting period occurring in a location(s) or practice(s) equipped with a certified EHR.” Such a solution would not only benefit nephrologists, but all other providers delivering care to patients with chronic disease in venues of care excluded from participating in the CMS EHR Incentive Program. This would result in more widespread adoption and utilization rates of certified EHRs among nephrologists and other chronic disease providers. 

Other Issues: 
Changes in Computerized Physician Order Entry (CPOE) Affecting Nephrology: RPA believes that the addition of laboratory and radiology services combined with increasing the threshold for compliance from 30% to 60% will make this criterion remarkably difficult for most nephrologist to meet, particularly those that must include the dialysis encounters to participate (in our experience this is most nephrologists). As discussed, until electronic systems between dialysis facilities and physicians EHRs communicate, the ability of nephrologists to achieve this threshold will be severely limited.
Use of Secure Messaging: It is RPA’s strong opinion that placing the burden of patient compliance with regard to secure messaging on the shoulders of nephrologists and other physicians makes this objective untenable. It is our belief that it will be exceptionally difficult for nephrologists to convince even a small percentage of their patients (10%) to use the certified EHR’s secure messaging system.
Providing Patients with Electronic Access: While it is RPA’s opinion that the first part of this objective requiring that at least 50% of the provider’s patients have electronic access to the health information is achievable through the use of an electronic portal, we believe that the second part of the objective is problematic. Requiring physician practices to ensure that at least 10% of the provider’s patients actually view, download or transmit their PHI is unworkable and creates an unnecessary administrative burden. Simply put, the provider does not have control over their patients’ use of the certified EHR.


With regard to both the use of secure messaging and patient engagement with their electronic PHI, RPA urges CMS to explore innovative methods for stimulating active patient participation in these areas.
Summary of Care: RPA believes that CMS may have created a criterion that is virtually impossible achieve with regard to the Summary of Care. Moving this objective from the menu option in Stage 1 and raising the threshold from 50% to 65% will already be challenging. However, requiring at least 10% of these documents to move electronically is problematic at best. The infrastructure to make this happen does not exist today and RPA doubts that it will be widely available in 2014.
Clinical Quality Measures: In the proposed rule, CMS and the Office of the National Coordinator (ONC) have asked for comment on the options outlined for reporting the 12 required Clinical Quality Measures (CQMs) in Stage 2. RPA strongly urges CMS and the ONC to ensure that the option allowing the selection of 12 CQMs with the caveat that at least 1 CQM comes from each of six defined domains remain available to promote the care of chronic disease patient population by nephrologists and other sub-specialists. It is our belief that in the development of quality measurement programs such as these not only by Medicare but also by other insurers, the unique characteristics of chronic care patients and providers are not accounted for. RPA therefore urges CMS to allow providers to select their CQMs to address this concern.
As always, RPA welcomes the opportunity to work collaboratively with CMS in its efforts to improve the quality of care provided to the nation’s kidney patients, and we stand ready as a resource to CMS in its future endeavors. Any questions or comments regarding this correspondence should be directed to RPA’s Director of Public Policy, Rob Blaser, at 301-468-3515, or by email at

Thank you, 

Ruben Velez signature

Ruben L. Velez, MD 

Renal Physicians Association

1700 Rockville Pike
Suite 220
Rockville, MD 20852

Phone: 301-468-3515
Fax: 301-468-3511

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