"Thus in order to comply with the law, CMS cannot begin the performance period for the Medicare spending per beneficiary measure on May 15, 2012."
3. The VBP rule said a measure's performance period for hospital-acquired conditions started one year after it was first displayed on HospitalCompare. And CMS said it would begin the performance period on March 3, 2012.
"However, the HAC measures were not posted directly on HospitalCompare one year prior to this date, as required by law, and are still not posted as of the date of this letter. Instead, the HAC measures were displayed as a downloadable spreadsheet on the CMS website on March 31, 2011."
Posting a spreadsheet does not comply with the ACA statute, Pollack wrote, adding "in order to comply with the law, CMS cannot begin the HAC performance period on March 3, 2012."
4. The Medicare spending-per-beneficiary measure has not been submitted for National Quality Forum endorsement review. CMS "neither provided justification for using the non-NQF endorsed Medicare spending per beneficiary measure nor gave any consideration to measures that have been endorsed or adopted by a consensus organization identified by the HHS Secretary. Thus by including this measure in the VBP program, CMS is not complying with the law.
5. CMS has made changes to the original VBP rule in three separate regulations, making it "very difficult to track all of the moving pieces associated with these multiple regulations. Further, CMS has created timing issues, both for itself and the public, around outpatient proposals that were reliant on inpatient proposals that were not finalized until well into the outpatient comment period."