In our previous blog post, we reviewed the CMS Meaningful Use Program including the events of 2015. We noted that it was remarkable that the program rules were published after the start of the measurement period. This tardy rulemaking process caused disorder and confusion especially in the last quarter of 2015. Providers needed to quickly learn about the modified rule and vendors had to update their systems to accommodate the latest set of objectives and new measurement periods.

Initially, CMS attempted to convince healthcare constituents impacted by the new rule-making that the delayed presentation of the new rule would not negatively impact providers. How could it not? CMS Meaningful Use

Congress acts in bipartisan fashion

While CMS was trying to smooth over the events of the last quarter of 2015, luckily for providers, Congress acted. Congress recognized how the delayed rule-making impacted providers and vendors.

The “Patient Access and Medicare Protection Act,” introduced by Sen. Rob Portman (R-OH) on Dec. 18 as S. 2425 and signed into law by President Obama on December 28 offers a new type of hardship exception from Meaningful Use penalties for the 2015 reporting period. Historically hardship exceptions were required to be considered only on a case by case basis. This new act affords providers and hospitals a structured lawful work-around to Meaningful Use for 2015 via a blanket hardship exception.

Providers that use this blanket hardship exemption based on the premise that delayed 2015 rulemaking impacted their ability to successfully attest to Meaningful Use for any 2015 measurement period will be able to avoid the associated three percent Medicare payment reduction for 2017. This new act specifically gives providers until March 15, 2016 and hospitals until April 1, 2016 to apply for the new blanket hardship exception.

Congress understood that because the final Stage 2 rule was not published in the Federal Register until mid-October that the delay may have caused some providers from meeting Meaningful Use in 2015.

Upon passage of S. 2425 in the House of Representatives, Rep. Tom Price (R-GA) issued the following statement:

“A patient-centered health care system relies on the principles of quality and responsiveness. The recent Modifications Rule for Stage 2 of the Meaningful Use Program for Electronic Health Records failed to offer physicians and hospitals with enough time to actually comply with the new requirements. Due to the tardiness of the final CMS rule, it is virtually impossible for doctors to meet the requirement deadlines. This much needed relief will make the hardship application process much easier for doctors to avoid penalties stemming from the Administration’s mistake, and thereby provide more time to care for patients.”

Don’t throw caution to the wind

This new hardship exception is not automatically afforded to providers. An application must still be filed on the CMS website by the above captioned deadlines in 2016.

Legislators Want to Delay Meaningful Use Stage 3

The GOP Doctors Caucus, of which Rep. Price is a member, has also been pushing for a delay of Meaningful Use Stage 3. In November 2015, that caucus sent a letter to House Speaker Paul Ryan, stressing that the “deeply flawed Stage 3 rule” be delayed, that “legislative remedy is the only way to ensure providers are protected” and that they needed to “prevent the harmful effects” of the rule.

The letter pointed to the lack of participation Stage 2 Meaningful Use participation, “Given the fact that only 12 percent of physicians have met Stage 2 requirements, we believe a simultaneous implementation of more-stringent criteria, along with the assessment of penalties for the first time this year, is likely to create a chilling effect on further EMR adoption as physicians conclude that the cost of implementation is simply not worth the bureaucratic hassle.”

Observation

This new hardship exception is the first complete capitulation by the Feds regarding Meaningful Use Stage 2. Essentially, any eligible professional (EP) can avoid penalties just by filing an online form. We expect that most providers, certainly our MediTouch users, will be able to comply and attest successfully without use of the hardship exemption, but the new exemption rule certainly reflects that the CMS Meaningful Use program is sadly fading as healthcare’s shining light and heading into a legislative quagmire.