New Hardship Exception for Anesthesiologists to Avoid the EHR Penalty

Last week, we announced the availability of a new web-based electronic health record (EHR) that will permit anesthesiologists to satisfy the Meaningful Use requirements for the Medicare EHR Incentive Program.  Although this technology, F1RSTUse, is relatively simple, requires little additional data entry and is an option for ABC clients and non-clients alike, it will not be the best solution for every reader.  Those of you who are not in a position to implement F1RSTUse or any EHR will be interested in a new hardship exception created by CMS when it released the final regulation on the Stage 2 Meaningful Use requirements on August 23, 2012.

Anesthesiologists not participating in the EHR Incentive Program are the targets of the new exception based on “scope of practice,” along with radiologists and pathologists.  In the final rule, CMS added a new section, §495.102(d)(4)(iv), to the regulations which provides that “eligible professionals” (EPs) who designate their primary specialty as anesthesiology, radiology or pathology will be deemed to qualify for this exception.  The specialty designation must be effective for six months prior to the first day of the year in which payment adjustments that would otherwise apply, i.e., by July 1, 2014 (six months before the penalty would begin to be applied to Medicare payments on January 1, 2015).

What this means, as a practical matter, is that anesthesiologists who do not seek the EHR payment incentive and who want to avoid the penalty must submit an application to CMS requesting the exception no later than July 1, 2014, for the first year in which they might otherwise be subject to the penalty.  They must reapply each year for the exception.  According to the statute (the American Recovery and Reinvestment Act of 2009, or ARRA), which CMS cannot modify, the exception will be available for a maximum of five years.  The assumption is that technology will continue to develop and thus even anesthesiologists, pathologists and radiologists will be able to avail themselves of certified EHR systems within five years.

The practice characteristics that CMS deems applicable to anesthesiologists may also describe other specialists who are not “hospital-based,” which means that 90% or more of their patient encounters are inpatient, and who may apply for the same exception by demonstrating either:

1. Lack of:
   • face-to-face or telemedicine interaction with patients; and of
   • follow-up need with patients; or
2. For “eligible professionals” (EPs) practicing in multiple locations: Lack of control over the availability of Certified EHR Technology at their practice location.

The second rationale, lack of control over the availability of Certified EHR Technology at their practice location, would potentially cover pain physicians who practice at several different sites and who “truly” do not influence the selection or implementation of EHRs at those sites – CMS makes it clear that just being a non-managerial member of a medical group that doesn’t use an EHR is not sufficient proof of “lack of control.”  Furthermore, because an EP can still qualify as a meaningful EHR user even if up to 49.9 % of the EP’s outpatient encounters are in locations that lack certified EHR technology, the new exception would apply only in the case of EPs practicing in multiple locations where the lack of control exists for at least 50% of their outpatient encounters at such locations.

At the other end of the spectrum, there are undoubtedly some anesthesiologists who are “hospital based” within the meaning of the EHR regulations, but who have invested in an appropriate EHR and would seek to earn the incentive.  In the final regulations, CMS modified the definition of “hospital based” so that EPs who can demonstrate that they fund the acquisition, implementation, and maintenance of certified EHR technology, including supporting hardware and interfaces needed for meaningful use without reimbursement from an eligible hospital —and use such EHR technology at a hospital, in lieu of using the hospital’s system—can be determined non-hospital based and receive an incentive payment. Determination will be made through an application process.

The following five-year payment table from CMS serves as a reminder of the importance of the option of becoming a meaningful user of certified EHR technology: 

	Attest in 2012	Attest in 2013
1st year	$18,000	$15,000
2nd year	$12,000	$12,000
3rd year	$8,000	$8,000
4th year	$4,000	$4,000
5th year	$2,000	$0

 

A physician needs to attest to 90 continuous days of EHR use in 2012 to earn the maximum incentive payment from CMS of $44,000 (October 3rd is the deadline). If the physician does not start using an EHR until 2013, the total incentive payment drops to $39,000.

CMS will issue further instructions on how to apply for the exception, and on how to attest to meaningful use, as the deadlines approach.  We will make certain to share that information with you.