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Legislation Calls for New Meaningful Use Hardship Exception

A proposed bill would allow for a meaningful use hardship exception as a result of the timing of the meaningful use modifications final rule.

By Kyle Murphy, PhD

Relief could be coming to eligible providers in Stage 2 Meaningful Use by way of a piece of legislation introduced last week in the House of Representatives.

Last Thursday, Representative Tom Price (R-GA) introduced the Meaningful Use Hardship Relief Act of 2015 (HR 3940) which would give the Centers for Medicare & Medicaid Services (CMS) special authority relative to meaningful use hardship exceptions in the current 2015 reporting year.

Specifically, the proposed legislation would amend a provision of the Social Security Act "to authorize a blanket meaningful use significant hardship exception for the 2015 reporting period due to the delay in timely publication of the Stage 2 meaningful use rule."

The meaningful use attestation period begins in January and runs through the end of February.

The House bill echoes the sentiments voice by the American Medical Association (AMA) in early October.

“The AMA welcomed and supported the proposed changes, but it’s now Oct. 1 and CMS has left physicians without any guidance or assurances that they will be capable of meeting program requirements before the end of the year,” AMA President Steven J. Stack, MD, said in a public statement last month.

"As a result, many physicians who were counting on this flexibility will be subject to financial penalties under the rules currently in place," he continued. "The AMA is asking CMS to create an automatic hardship exemption as soon as possible so that physicians are not penalized for regulatory delays that are outside their control."

The only recent CMS updates to meaningful use hardship exceptions have focused on the replacement or decertification of certified EHR technology.

In an update in late September, the federal agency noted two conditions that would allow eligible providers to receive a meaningful use hardship. In the first, CMS stated that "if a provider switches EHR vendors during the Program Year and is unable to demonstrate meaningful use, the provider may apply for an Extreme and/or Uncontrollable Circumstances hardship exception and if approved may be exempt from the payment adjustment."

The second regarding the decertification of CEHRT was more extensive:

If your product is decertified, you can still use that product to attest if your EHR reporting period ended before the decertification occurred. If your EHR reporting period ended after the decertification occurred, you can apply for a hardship exception. If the decertification occurs after the hardship exception period has already closed for the payment adjustment year which would be applicable for your reporting period, please contact CMS Hardship Coordinator at [email protected] to apply for a hardship exception under the Extreme and/or Uncontrollable Circumstances category per CMS discretion to allow such an application.

How we got here

That multiple stakeholders are pushing for an additional meaningful use hardship exemption — one tied to the timing of the final rule for meaningful use modifications — speaks to how CMS has handled its rulemaking in 2015.

The federal agency first revealed its intention to modify 2015 meaningful use requirements back in January. Deputy Administrator for Innovation & Quality and Chief Medical Officer Patrick Conway, MD, wrote in a CMS blog post that the agency was considering a 90-day reporting period and the alignment of reporting calendars and objectives for eligible professionals and hospitals.

A propose rule, however, did not hit the Federal Register until April, which was then followed by the accompanying comment period.

Word then started to spread in early September that CMS was close to finalizing the meaningful use modifications rule. What was unexpected was that the final rule under review by the Office of Management and Budget (OMB) also included rulemaking for Stage 3 Meaningful Use.

The final rule was ultimately published in the Federal Register in the middle of October, nearly two weeks after AMA made its above remarks.

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