The Centers for Medicare & Medicaid Services (CMS) has released details of a new hardship exception that physicians and other eligible professionals (EPs) may seek to avoid penalties in 2016 if they fail to show meaningful use of electronic health records (EHRs) in 2014. However, the announcement of this exception, related to EHR vendor issues, still leaves a lot to be explained, observers say.

Following up on what CMS Administrator Marilyn Tavenner said at the recent annual conference of the Health Information Management and Systems Society, the CMS announcement on March 11 stated that EPs could seek hardship exceptions if they "are unable to implement the 2014 Edition of Certified Electronic Health Records Technology in time to successfully demonstrate meaningful use for the 2014 reporting year."

According to the CMS hardship exception application, the basis for the new exception is that "the EP's EHR vendor was unable to obtain 2014 certification or the EP was unable to implement Meaningful use due to 2014 EHR certification delays."

EPs who have attested to meaningful use in previous years now have until July 1, 2015, to submit their application for a hardship exception. Those who have not previously attested and who seek to avoid a penalty in 2015 must submit their application by July 1, 2014.

More Questions Than Answers?

The Medical Group Management Association (MGMA) welcomes the new hardship exception for vendor-related problems, said Robert Tennant, senior policy advisor to the MGMA, in an interview with Medscape Medical News. Some physicians, he noted, have been participating in the EHR incentive program for up to 3 years and have now discovered that their vendor has not gotten certified or has no plans to be certified under the 2014 criteria.

"The foundation of the program is the software vendor, and if they're not able to meet the 2014 criteria, EPs can't attest," he said. "We don't want those folks who made a good faith effort to be penalized. And it's not reasonable to require the EP to dump whatever program they have and buy another one."

MGMA was 1 of 47 industry groups that recently sent a letter to CMS asking that the deadline for attestation to meaningful use stage 2 be pushed back. Among the reasons they cited was the lag in 2014 certifications by EHR vendors, many of which have not rewritten their software to meet the standards required for stage 2.

On the basis of the description in the CMS exception application, it is unclear whether an EP's vendor must have applied for 2014 certification for that EP to be eligible for a hardship exception. CMS did not respond to requests for clarification.

Tennant pointed out that the language referring to 2014 certification delays "is very broad. It's almost tantamount to a delay in stage 2."

In contrast, he observed that the wording of the exception focuses on the delay in certification, "not on the rollout of the product. If your EHR got certified in January but because of backlog they weren't able to [upgrade your EHR] until August or November, technically I don't know if that would permit you to apply for that exception."

Thomson Kuhn, senior system architect for the American College of Physicians, agrees that the CMS announcement raises more questions than it answers. For example, he noted, CMS does not specify when an EP's vendor must provide a 2014-certified EHR or define which meaningful use issues related to certification delays qualify an EP for the hardship exception.

"The question for our members is when will they have a fully functional [certified] system up and running in the office, with everyone trained and ready to begin using it to begin their 90 days of meaningful use," he told Medscape Medical News. EPs must demonstrate meaningful use for a 3-month period in 2014.

Other possibilities also loom, notes Kuhn, such as what happens if the system has been installed but does not work properly — does that qualify you for an exception?

Some vendors have delayed release of their 2014-certified EHRs because they are still completing the International Statistical Classification of Diseases and Related Health Problems, 10th Revision (ICD-10), upgrade that is part of the same release. Others have introduced ICD-10-upgraded systems that are not 2014-certified, Kuhn pointed out.

With the transition to the new diagnostic code set coming on October 1, he noted, "the doc is in a complete bind." The physician is forced to choose between sticking with a product he cannot use to show meaningful use or switching to a new EHR just before the ICD-10 deadline.

"The point is, time's up," Kuhn declared. "We're almost done with the first quarter. It's too late to do anything. Getting a new system is a year- to 18-month-long process. I don't see how anyone can do anything at this point other than apply for the hardship exception. If they don't have a certified system up and running today, they won't be able to get this [meaningful use stage 2 attestation] done."