Meaningful Use Hardship Exception for 2015 Remains Uncertain

CMS has been very eager to publish the good news about EHR implementation—that is, the fact that more than 400,000 eligible professionals (EP) have received financial incentives under the Medicare & Medicaid EHR Incentive Program since 2011. However, the agency has been far less transparent about the fact that many EPs continue to struggle with the cost of the technology as well as other barriers.

EHR Intelligence reported in December 2014 that more than 257,000 EPs will receive a financial penalty this year for failure to implement certified EHR technology in previous years. In January, Politico reported in its Morning eHealth news roundup that 240,000 and other eligible providers will receive 1% cuts to their Medicare payments this year. CMS refused to confirm any specific data directly with Kareo.

Regardless of the specific statistics, financial penalties are not the answer, says Robert M. Tennant, MA, senior policy advisor, government affairs, at the Medical Group Management Association. “You’re going to penalize the providers who frankly have the fewest resources to buy the technology,” he says. “The more wealthy practices have the capital and human resources to implement these systems and participate in the incentive program.”

Aside from cost, there are plenty of other barriers to implementation. CMS recognizes some of these barriers in its guidance regarding hardship exceptions for which providers could apply in 2014 to avoid the penalty.

Politico first reported in September 2014 that CMS received roughly 44,000 applications for the hardship exception. Various other news outlets have since reported this information as well. Despite numerous attempts, CMS refused to confirm the data directly with Kareo.

CMS told EHR Intelligence in October 2014 that the vast majority of those applying for this exception are “first timers in 2014 experiencing issues with their CEHRT.”

Some EPs set to receive the penalty this year may have qualified for a hardship exception and either not known that they could apply, or they may have been unaware of the exception altogether. “It’s probably a significant percentage,” says Tennant.

According to CMS, EPs and eligible hospitals may be exempt from payment adjustments “if they can show that demonstrating meaningful use would result in a significant hardship.” What does this mean exactly?

A CMS tip sheet for EPs last updated in August 2014 indicates that EPs can apply for a hardship exception when they can demonstrate the following:

• Insufficient Internet access or insurmountable barriers to obtaining infrastructure.
• Unforeseen circumstances, such as a natural disaster or other unforeseeable barrier. CMS considers 2014 EHR vendor issues an unforeseen circumstance.
• Lack of face-to-face or telehealth interactions with patient as well as lack of follow-up need with patients.
• Lack of control over availability of CEHRT for more than 50% of patient encounters.


• The 2014 deadline for hardship exception applications was July 1. Although a July 1, 2015 deadline seems likely for the next round of applications, Tennant says anything is possible at this point.
  
  “We’ve had meetings with the National Coordinator and CMS, and they’ve suggested that changes may be forthcoming to the program,” he says. “I anticipate that the low number of Stage 2 successful EPs in 2015 will act as the catalyst for these much needed modifications, and the revamp may include changes to the hardship exceptions.”
  
  The CMS website states that providers must complete a hardship exception application and provide proof of that hardship; however, a link to the actual application for 2015 is not yet available.
  
  The MGMA and other industry groups have argued for greater flexibility in terms of an EP’s ability to satisfy Meaningful Use requirements. “If you’re 99.9% successful with Meaningful Use, you still 100% fail. It’s all or nothing,” says Tennant. “It’s really unfair to penalize a physician when he or she has made a good faith effort to meet the requirements and is trying to do the right thing.”
  
  The patient threshold for viewing, downloading, and transmitting health information, for example, continues to be a barrier for many EPs, especially specialists, he says. Unlike many primary care physicians who have an ongoing relationship with their patients, specialists may see a patient only once or twice.
  
  “A challenge for some EPs has been convincing their patients to go on a portal when they have already told them everything they need to know during the visit and /or supplied them with a written clinical summary” says Tennant.
  
  Note that several categories of providers automatically receive a hardship exception and do not need to submit an application. According to CMS, these providers include the following:
• Those who are new to the profession (i.e., those in their first year)
• Hospital-based EPs (i.e., those who provide more than 90% of the covered professional services in either an inpatient or emergency department of a hospital)
• EPs for whom 90% of claims include Place of Service codes 21, 22 (for certain observation services), or 23
• EPs with certain PECOS specialties (i.e., 05, anesthesiology; 22, pathology; 30, diagnostic radiology; 36, nuclear medicine; 94, interventional radiology) (Note: This information must have been listed in PECOS six months prior to the first day of payment adjustments.)


• Not sure whether you should apply for a MU hardship exception in 2015? Consider this interactive Hardship Exception Tool to help you make the decision. 
  
  “We’re counseling members to at least argue unforeseen circumstances. There’s really no clear guidance on what would constitute an unforeseen circumstance,” says Tennant.
  
  In addition to providing hardship exceptions, CMS published a final rule (79 Fed. Reg. 52,910) that allowed providers and hospitals to use in 2014 electronic health record systems that meet 2011 Edition certification criteria. However, this rule was only effective in 2014. It remains unclear whether providers will have that same flexibility in 2015 with Stage 2.
  
  In September, Congresswoman Renee Ellmers (R-NC-02) and then-Rep. James Matheson (D-Utah) introduced the Flexibility in Health IT Reporting (Flex-IT) Act of 2014 that would allow providers to report their Health IT upgrades in 2015 through a 90-day reporting period as opposed to a full year—yet another indication that providers continue to struggle with attestation. Rep. Ellmers reintroduced the bill (now HR 270) on January 12, and it has attracted bipartisan support.
  
  The Office of Management and Budget (OMB) is currently reviewing the Proposed Rule for Stage 3 of Meaningful Use. The OMB’s website states that Stage 3 proposes “changes to the reporting period, timelines, and structure of the program, including providing a single definition of meaningful use. These changes will provide a flexible, yet, clearer framework to ensure future sustainability of the EHR program and reduce confusion stemming from multiple stage requirements.” Once approved by OMB, the rule most likely will be released by CMS as a proposed rule for public comment.
  
  However, the worst scenario for providers is that the CMS won’t finalize flexibility with Stage 2 until they also finalize the Stage 3 rule. This won’t likely occur until September, says Tennant.
  
  For more information on Meaningful Use, visit the Kareo Meaningful Use Resource Center.