Delay Hardship Deadline for EHR Meaningful Use, Doctors Say

June 30, 2014

The federal government recently has given physicians several big breaks in keeping up with tougher requirements in its incentive program for using electronic health records (EHRs) in a meaningful way.

Now organized medicine is pressing the government for yet another break.

Last week, the American Medical Association (AMA) and the Medical Group Management Association (MGMA) asked the Centers for Medicare & Medicaid Services (CMS) to delay a July 1 deadline for submitting a hardship exception application that could spare physicians a 1% Medicare penalty in 2015 for failing to demonstrate EHR meaningful use. That penalty applies specifically to physicians who have not previously achieved meaningful use before 2014 and who fail to do so this year as well.

The penalty increases to 2% in 2016 for physicians who successfully achieved meaningful use in a previous year, but not in 2014. The deadline for requesting a hardship exception for the 2016 penalty is July 1, 2015.

Sanctioned hardships that justify why someone does not achieve meaningful use range from lack of sufficient Internet access to a natural disaster.

In March, CMS added a new hardship category: software vendor problems. The agency did so to accommodate physicians who are at the mercy of vendors that could not give them an EHR program with the necessary certification for the incentive program. There have been 2 levels of certification that correspond to 2 stages, so far, of meaningful use requirements, with the second being more rigorous than the first. As part of satisfying stage 1 through 2013, physicians had to deploy a so-called 2011 edition of a certified EHR.

In 2014, stage 2 of the program takes effect for physicians who have earned bonuses for meeting stage 1 criteria in at least 2 prior years. One of the new requirements is using a 2014 edition of a certified EHR program. Physicians participating in the program for the first time in 2014 who are subject to stage 1 rules, or who are shooting for their second stage 1 bonus this year, also must use the more sophisticated 2014 edition.

The hitch for physicians during this transition is that software vendors have been slow to upgrade their products from the 2011 to 2014 editions, get them certified, and roll them out to customers. Recognizing this problem, CMS announced in March that physicians could seek a hardship exception — and escape penalties either in 2015 or 2016 — if their vendor was unable to obtain 2014 certification of their program or if physicians could not achieve meaningful use because of a certification delay.

In May, CMS released proposed regulations that went a step further in leniency: Physicians would be able to use a 2011 edition EHR, a combination of the 2011 and 2014 editions, or the 2014 edition alone to meet stage 1 or stage 2 requirements this year. This proposed loophole, however, would apply only to physicians who are unable to use the 2014 edition because of vendor snafus.

CMS also said that physicians seeking stage 2 certification in 2014 who could not get their hands on a 2014 edition EHR could elect to meet stage 1 objectives and measures, which go beyond merely owning a certified program to electronic prescribing and maintaining a problem list, among other practices.

In their letter last week to CMS Administrator Marilyn Tavenner, the AMA and MGMA said the proposed regulations, although appreciated, warrant an extension of the July 1 hardship deadline for physicians who do not achieve meaningful use on a first-time basis in 2014, and therefore risk the 1% penalty in 2015. Many of these physicians, they said, expect to qualify as meaningful users in 2014, but "well after the July 1 deadline."

However, given that the proposed regulations probably will not be made final until late this summer, "many eligible professionals [EPs] are unclear as to the [meaningful use] requirements for 2014 and whether they need to apply for a hardship before the rule is finalized."

"Should an eligible professional be unable to meet the modified [meaningful use] requirements, they will have missed the hardship exception deadline and will be unfairly penalized in 2015," said the AMA and MGMA.

The 2 organizations recommended making the hardship application deadline at least 30 days after the final regulations are published. "This additional time," they wrote, "would allow EPs to fully understand the new rule's requirements and would provide further encouragement for EPs to continue their participation in this important program."

CMS offers a tool on its Web site to help physicians determine if and when they should apply for a hardship exception in the incentive program.

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