3 things to expect from the Hill this fall

  | September 9, 2016

On Tuesday, Congress returned from its seven-week summer recess. (You got one of those, right?) Now that members have closed up their beach homes and vacuumed the sand out of their SUVs, what's next on their to-do lists? We can expect them to cram in a few issues this month before the election takes over completely. Then, we'll close out the 114th Congress with a “lame duck" legislative session, which isn't typically the most productive of times.
Federal agencies, in contrast, will be busy cementing President Barack Obama's legacy by churning out final rules and hoping their shiny new regulations aren't overturned soon after.
So what does all this mean for the world of health IT and for healthcare providers and organizations generally? Here are three things to watch for, and our best predictions for what to expect:

1. The MACRA two-step

This fall, all eyes will be on the final rule implementing the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA), which proposes sweeping changes in the way physicians are to be paid under Medicare. (If you haven't yet gotten the download on the latest program set to invade the exam room, don't panic: Here's a quick infographic primer).

The chorus calling for delays in the rule has been deafening, given the absurdly narrow window between the final rule's November 1 release and the proposed January 1 start date for implementation. In a letter to CMS this week, leaders of the House Energy and Commerce and Ways and Means committees, without calling for an outright delay to the start date, called on the agency to “consider flexibilities" to ensure a successful implementation.

Then on September 8, CMS Acting Administrator Andrew Slavitt, who had previously suggested his openness to a delay, announced that CMS will allow doctors to “pick their pace" and choose from four options for the first performance period beginning January 1, 2017. CMS contends that choosing one of these options will ensure that clinicians avoid the likelihood of a negative payment adjustment in 2019. But the devil still lurks in the details, so stay tuned for plenty more on this.

PREDICTION: MACRA gets watered down to virtually nothing in the face of massive physician protest. Now where have we seen that before...?

2. Interoperability by federal decree?

The biggest piece of health IT legislation floating this session aims to spur innovation and health record sharing, two things we could all use more of. Back in July 2015, the House passed the 21st Century Cures Act, which aims to accelerate the way we discover and develop disease treatments and contains several health IT provisions. Due to differing opinions related to funding, the Senate has yet to move on its version. Though the bill's architects remain optimistic about a compromise, chances of something being signed into law before the end of the session are slim to none.

Tucked deep in both versions are provisions regarding interoperability. The ability to coordinate care across settings and health IT platforms is, as we all know, fundamental to success under value-based models. And while Congress has been making noise about a federal “solution" to interoperability, private sector initiatives such as the CommonWell Health Alliance and the Sequoia Project's Carequality program have thrived. If Congress does manage to act, it risks impeding innovation and ultimately jeopardizing provider success.

PREDICTION: Government hits standstill, private sector keeps carrying the torch (as it should).

3. ONC oversight -- or overreach?

This spring the Office of the National Coordinator for Health Information Technology, or ONC, proposed a hefty and unpopular rule meant to give them “enhanced oversight and accountability" over EHRs and the health IT entities that test them. One of the more questionable provisions in the rule is the authority ONC grants itself to essentially dictate how a company builds and modifies health IT products. This is the equivalent of FCC telling Tim Cook and Apple that the new iPhone 7 is required to have an audio jack.

Another provision would subject EHRs to ONC “field inspection," while a downright Kafkaesque MACRA provision would require clinicians to attest to compliance with ONC surveillance and oversight activities.

Thankfully, the uproar from vendors and provider organizations woke the giant from its slumber, prompting Congress to question whether ONC is overreaching its authority. The upshot: It's quite possible ONC could face legal challenges if the agency moves forward. Certification is already an incredible drain on health IT developer resources, with no related gains in patient care. With physicians already experiencing burnout from administrative overload, the last thing we need is more ONC surveillance/oversight/inspection.

PREDICTION: Rule goes through, with the ONC dialing back its ambitions just enough to avoid the long arm of the law.

That's what we see coming in our crystal ball. Of course, as with this 2016 election and most of what transpires inside the Beltway, it's always wise counsel to expect the unexpected.

Krina Patel is senior government affairs associate at athenahealth. 

3 things to expect from the Hill this fall