Updated March 5, 2015 to reflect changes in hardship application. See our recent blog on attestation.
On December 28, President Obama signed into law the Patient Access and Medicare Protection Act. The goal of Section 4 of the bill is to make it easier for physicians and hospitals to receive a hardship exemption from the 2015 Medicare requirement for the meaningful adoption of electronic medical record technology. However, the legislative language is incredibility vague and raises more questions than answers.
Here’s what we know (and we have FAQs too - see our attestation blog):
- The attestation period for 2015 Meaningful Use of a certified Electronic Health Record (reporting period 90 continuous days) opened January 4 and closes February 29 March 11, 2016.
- The Centers for Medicare & Medicaid Services (CMS) released their modification of the program requirements only in October 2015. Due to this delay, likely was difficult for physicians to meet the 2015 requirements due to slow software upgrades.
- The new law restates current CMS authority to grant hardship exemptions on a case-by-case basis. Congress intended them to use this to permit broader exceptions due to software glitches and ongoing system problems. However, the language does not grant any additional authority.
- CMS typically has the timeline for exemption applications until the summer (July 1, 2016) of the year following the attestation period. Congress set the timeline ending in March 15, 2016. CMS extended the timeline again to July 1, 2016 on February 26.
While the hardship exemption seems like a way to avoid the Medicare 2% penalty in 2017, don’t bank on this. The CMS categories for applying for a "streamlined hardship exemption application process"; one exception may be appropriate for physicians with late software updates to address the program changes:
- Lack of Infrastructure: Physicians must demonstrate that they are in an area without sufficient internet access or face insurmountable barriers to obtaining infrastructure (e.g., lack of broadband).
- Extreme and Uncontrollable Circumstances: Examples may include a natural disaster or other unforeseeable barrier.
- EHR Vendor Issues: The physicians’ EHR vendor was unable to obtain certification by the start of the attestation period, experienced extreme problems in implementation upgrades for the certification or a physician changed EMR systems during the attestation period
- Patient Interaction:
- Lack of face-to-face or telemedicine interaction with patient
- Lack of follow-up need with patients
- Practice at Multiple Locations: Lack of control over availability of CEHRT for more than 50% of patient encounters.
Physicians considering filing a hardship when they do not fall into one of the categories is risking future scrutiny by not meeting the described requirements. For those physicians who apply, be sure to document why the category applies. This can apply to EMR vendors that did not have mature implementation of system upgrades to meet the revised Stage 2 requirements. Document and make copies of any correspondence from the vendor explaining the situation. You will need to have it available on audit.
2.2.d EHR Certification/Vendor Issues (CEHRT Issues)
I, on behalf of the provider(s) listed in Section 3 and/or 4, am requesting this Medicare EHR Incentive Program Hardship Exception and attest that the provider(s) faced extreme and uncontrollable circumstances in the form of issues with the certification of the EHR product or products such as delays or decertification, issues with the implementation of the CEHRT such as switching products, or issues related to insufficient time to make changes to the CEHRT to meet CMS regulatory requirements for reporting in 2015. I further attest that this extreme and uncontrollable circumstance in the form of EHR certification/vendor issues constitutes a significant hardship in demonstrating meaningful use as defined under 42 CFR 495.102(d)(4)(iii)
Be sure to keep an eye on the SCG Health blog for updates and resources on meeting and exceeding Meaningful Use requirements and how to prepare for audits of your attestation.