October 26, 2015

CMS released the long-awaited final rule on the Electronic Health Record Incentive Program-Stage 3 and Modifications to Meaningful Use in 2015 through 2017 (Final Rule) on October 6, 2015. In this rule, CMS made significant changes to current “Meaningful Use” (MU) requirements with the intent to ease the reporting burden for physicians and other providers and to support interoperability. The Electronic Health Record (EHR) Incentive Program was established by the American Recovery and Reinvestment Act of 2009. Separate Medicare and Medicaid programs provide for incentive payments to eligible professionals (EPs) who are meaningful users of certified EHR technology. The last year in which EPs could earn a Medicare incentive payment was 2014; the Medicaid program provides for incentives through 2016. Starting on January 1, 2015, EPs who do not demonstrate MU under either the Medicare EHR Incentive Program or the Medicaid EHR Incentive Program are subject to a payment “adjustment” or penalty—unless they benefit from an exception. The penalty for not demonstrating MU in 2015 is one percent of the EP’s fee schedule payments. It will grow to two percent in 2016 and to three percent in 2017 and 2018.

Exemptions

Physicians designated as anesthesiologists in the Medicare Provider Enrollment, Chain, and Ownership System (PECOS) (specialty 05) six months before the first day of payment adjustments each year have an automatic exception and do not need to apply to avoid the penalty. The final rule explicitly affirms the availability of the PECOS specialty exception, subject to annual renewal. Because it is familiar to so many anesthesiologists, we also mention the exemption for hospital-based eligible professionals, i.e., those who provide 90 percent or more of their covered services in a hospital inpatient or emergency room setting, which CMS determines based on the place of service codes (POS codes) on the claims submitted to Medicare (POS code 21 for Inpatient Hospital and POS code 23 for Emergency Room - Hospital). Most anesthesiologists perform the bulk of their services in the Outpatient Hospital (POS code 22) or Ambulatory Surgical Center (POS code 24) rather than in an inpatient setting. The exemption is not applicable to these anesthesiologists, but they can rely on the PECOS specialty exemption. Non-anesthesiologist physicians, for example pain specialists, who will not be able to demonstrate MU in 2015 may apply for a hardship exception under the "extreme and uncontrollable" circumstances category. Those circumstances would likely include inability to satisfy the EHR Incentive Program conditions because the Final Rule was not released until after the start of the last 90-day reporting period, according to a FAQ published on October 7th in which CMS also stated, encouragingly, that “In the past, CMS has considered these applications seriously and, in fact, has approved over 85% of hardship exemptions.”

Simplified Reporting Requirements

For those physicians who cannot avail themselves of any of the exemptions, the Final Rule relaxes the MU 3 requirements for Stage 2 as modified and Stage 3 in a number of respects, including: ?

• Establishing a single set of objectives and measures to which all EPs are required to attest in 2015 and 2016, replacing the core and menu structure of Stage 1 and the earlier version of Stage 2. The number of required objectives has been reduced from 18 to 10, including one consolidated public health reporting objective. The 10 objectives for EPs are as follows: ?
• Protect Patient Health Information: Protect electronic health information created or maintained by the CEHRT through the implementation of appropriate technical capabilities. ?
• Clinical Decision Support (CDS): Use clinical decision support to improve performance on high priority health conditions. ?
• Computerized Provider Order Entry (CPOE): Use computerized provider order entry for medication, laboratory and radiology orders directly entered by any licensed healthcare professional who can enter orders into the medical record per state, local and professional guidelines. ?
• Electronic Prescribing: Generate and transmit permissible prescriptions electronically (eRx). ?
• Health Information Exchange: The EP who transitions their patient to another setting of care or provider of care or refers their patient to another provider of care provides a summary care record for each transition of care or referral. ?
• Patient Specific Education: Use clinically relevant information from CEHRT to identify patient specific education resources and provide those resources to the patient. ?
• Medication Reconciliation: The EP who receives a patient from another setting of care or provider of care or believes an encounter is relevant performs medication reconciliation. ?
• Patient Electronic Access: Provide patients the ability to view online, download and transmit their health information within four business days of the information being available to the EP. ?
• Secure Electronic Messaging: Use secure electronic messaging to communicate with patients on relevant health information. ?
• Public Health Reporting: The EP is in active engagement with a public health agency to submit electronic public health data from CEHRT, except where prohibited and in accordance with applicable law and practice.
• Reducing the thresholds for patient engagement measures from five percent to just one patient for the view, download or transmit measure, and from five percent of patients to a simple yes/no indication of whether the EP has the capability on the secure messaging measure. ?
• To allow CMS and providers time to implement these modifications, the EHR reporting period in 2015 is any continuous 90 day-period within the calendar year. All providers will have until February 29, 2016 to attest.
• Beginning with 2016, the EHR reporting period must be completed within January 1 and December 31 of the calendar year. EPs who are new participants in the program would have an EHR reporting period of any continuous 90-day period between January 1, 2016 and December 31, 2016. However, for returning participants, the EHR reporting period would be a full calendar year from January 1, 2016 through December 31, 2016.
• In 2017, the EHR reporting period would be one full calendar year for all providers except new participants and/or providers who choose to implement Stage 3, who are allowed a 90-day reporting period.
• Stage 3 of MU will not become mandatory until January 1, 2018. For EPs who are participating in the EHR Incentive Program, moving from Stage 2 to Stage 3 will be optional in 2017.

For more detailed information on the MU reporting requirements, see the Final Rule or CMS’ explanatory EHR Incentive Programs: 2015 through 2017 (Modified Stage 2) Overview, or, if you are a Medical Group Management Association member, MGMA’s Overview of the Final Requirements for Meaningful Use - 2015 through 2017.

Going Forward

CMS will be accepting “comments” on the Final Rule for 60 days, through December 15, 2015. The Agency is looking for feedback on the EHR Incentive program itself, and on how best to incorporate it into payment framework established by the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). MACRA established the Merit-based Incentive Payment System (MIPS) and consolidates certain aspects of a number of quality measurement and federal incentive programs. The MIPS will begin in 2019 and will replace and incorporate the MU program. Demonstrating MU will account for 25 percent of the MIPS composite score. The composite score will be calculated based on a provider’s score across four domains: (1) MU of EHRs; (2) quality measures; (3) efficiency measures; and (4) clinical practice improvement activities. Those whose composite scores exceed the threshold will be eligible for a payment increase. How anesthesiologists will be able to participate in the MIPS has not yet been determined. CMS plans to release proposed rules implementing MACRA in the spring of 2016.

CMS claims that 70 percent of EPs have successfully used EHRs and received incentive payments from the federal government. (Fact Sheet: Electronic Health Record Incentive Program and Health IT Certification Program Final Rule.) That proportion seems astonishingly high when one considers the volume of physicians’ complaints about EHR technology. A recent Modern Healthcare analysis of program data indicated physician participation dropped by 12 percent in 2014 compared with a year earlier (Final Stage 3 EHR rule is out, but HHS signals more changes ahead). One physician who has captured his peers’ frustration with EHRs in a unique and clever way is ZDoggMD, a hospitalist-turned –rapper from Stanford who has just released a video entitled EHR State of Mind. If you have read this far, you should take a break and watch the video. Something is bound to resonate.

With best wishes,

Tony Mira
President and CEO