CMS Final Rule Bends Timelines and Standards for Certified EHR Technology

The HHS Office of the National Coordinator for Health Information Technology (ONC), together with CMS, has issued a final rule that modifies timelines and standards for the Medicare and Medicaid Electronic Health Record (EHR) Incentive Program, known as meaningful use. Among other provisions, the final rule seeks to allow providers an opportunity to meet meaningful use objectives by permitting eligible providers to use 2011 certified electronic health record technology (CEHRT) for an additional year. Much of the final rule, which is scheduled to be published in the Federal Register on September 4, 2014, is comprised of the unaltered provisions of a 2014 proposed rule (79 FR 29732) and a 2012 interim final rule (77 FR 72985).

Background

The Health Information Technology for Economic and Clinical Health (HITECH) Act, created by Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (ARRA) (P.L. 111–5), authorized payments to eligible professionals (EPs), eligible hospitals, critical access hospitals (CAHs), and Medicare Advantage (MA) organizations to incentivize the adoption and meaningful use of CEHRT. The amendments require that Medicare and Medicaid providers adopt specific CEHRT standards in order to be eligible for the financial incentives.

Timelines

Initially, under 45 CFR 170.102, beginning with fiscal year (FY) and calendar year (CY) 2014, all EPs, eligible hospitals, and CAHs were required to use 2014 Edition CEHRT in order to meet meaningful use standards under the Medicare and Medicaid EHR Incentive Programs. In 2012, CMS published a final rule (77 FR 53968) that sets out the stages for implementation of meaningful use through 2021. In response to provider complaints that not enough time would pass between the issuance of the 2012 final rule and the date on which providers were expected to have adopted 2014 Edition CEHRT, CMS proposed alterations to the initial timelines. A May 2014, proposed rule expressed the CMS decision to grant more flexibility to providers by allowing certain providers the opportunity to use either 2011 CEHRT or a combination of 2011 and 2014 CEHRT. The permission to delay compliance applied only to those providers who could not meet 2014 CEHRT standards due to delays in 2014 CEHRT availability (see, CMS proposal would change Certified EHR technology timelines and clinical quality measure reporting, May 23, 2014).

Final Timelines

The final rule adopts the proposal to lengthen the 2014 CEHRT date for those providers who could not access updated CEHRT. Additionally, the final rule maintains the requirement that providers must comply with 2014 CEHRT standards for CY 2015 and FY 2015, based on provider type, in order to receive incentives under the EHR incentive program. The final rule also adopts the proposal to change the definition of “Adopt, Implement or Upgrade” under 42 CFR 495.302 in order to prevent providers from meeting meaningful use standards by upgrading to an obsolete CEHRT system. The only upgrade or adoption a provider could make that would qualify for incentive payments would be an upgrade to 2014 Edition CEHRT. CMS makes clear that it is not seeking to delay the EHR incentive program and is only granting a limited exception for those providers who do not have access to 2014 Edition CEHRT.

Three Options

The proposed rule set out three options for available CEHRT edition standards that the final rule adopted entirely. The final rules sets out the following requirements for each group:

  • 2011 Edition CEHRT only. EPs, eligible hospitals, and CAHs that use only 2011 Edition CEHRT for their EHR reporting period in 2014 must meet the meaningful use objectives and associated measures for Stage 1 that applied for the 2013 payment year, regardless of their current stage of meaningful use.
  • 2011 and 2014 Edition CEHRT. EPs, eligible hospitals, and CAHs using a combination of 2011 Edition CEHRT and 2014 Edition CEHRT for their EHR reporting period in 2014 may choose to meet the 2013 Stage 1 objectives and measures or the 2014 Stage 1 objectives and measures, or if they are scheduled to begin Stage 2 in 2014, they may choose to meet the Stage 2 objectives and associated measures.
  • 2014 Edition CEHRT. Providers scheduled to begin Stage 2 for the EHR reporting period in 2014 who cannot fully implement all the functions of their 2014 Edition CEHRT required for Stage 2 objectives and measures due to issues related to 2014 Edition CEHRT availability delays could use 2014 Edition CEHRT to attest to the 2014 Stage 1 objectives and measures for the EHR reporting period in 2014.

Future Stages

The impact of the deadline changes is that Stage 2 of the EHR incentive program is extended through CY 2016 for EPs and through FY 2016 for eligible hospitals and CAHs that first became meaningful EHR users in CY/FY 2011 or 2012. For providers that will experience the extended Stage 2 deadline, Stage 3 will begin in CY or FY 2017.

Attestation

The final rule makes clear that any providers seeking to take advantage of the three timeline extension options implemented by the final rule must attest to their inability to fully implement 2014 Edition CEHRT. The specific requirements for such an attestation are set out in detail in the final rule.

Other Changes

In 2012, CMS and the ONC issued an interim final rule which sought to alter the stage 2 meaningful use objective that requires hospitals, under 42 CFR 495.6(m)(6)(i), “to provide structured electronic lab results to ambulatory providers for more than 20 percent of electronic lab orders received.” The interim final rule added an alternative measure to that requirement that allowed hospitals to submit more than 20 percent of either electronic or non-electronic lab orders.

CQM

The interim final rule also provisionally adopted a threshold for compliance with clinical quality measures (CQMs). The threshold provision was designed to exempt hospitals from reporting certain CQMs if the hospitals had a limited number of discharges as defined by the CQM category’s population requirement. Specifically, hospitals with five or fewer discharges within a reporting period or 20 or few discharges during the year would be eligible to attest to those numbers and obtain an exemption from the reporting requirement.(see Interim rule updates health information technology standards, revises EHR incentive program, December 7, 2012).

DEC

The Data Element Catalog (DEC) contains a list of the data that is necessary for CQM calculations. The 2012 interim final rule made updates to the DEC to reflect updates that HHS identified as necessary for EHRs to capture all the relevant CQM data. When providers submit CQM data to CMS, they must do so in accordance with Quality Reporting Document Architecture Category III (QRDA III) standards. Those standards were also revised by the 2012 interim final rule to require submissions to include additional data, like providers’ National Provider Identifiers (NPIs) or Taxpayer Identification Numbers (TINs). The revisions also made some of the previously required data optional.

Final Position

CMS and the ONC received no timely comments in response to the interim final rule. In the final rule, CMS and the ONC adopted as final the EHR lab reporting measure, the CQM threshold, and the DEC and QRDA III standards without modification.