EHR Certification Flexibility Final Rule Commentary and Analysis

The news came out late on Friday that the EHR Certification flexibility was published as a final rule. I covered my initial take on the EHR Certification Flexibility on Hospital EMR and EHR. I’ve now had a chance to dig through the delicious 90 pages of government rule making and comments that make up the final rule. For those following along at home, you can skip to page 10 of the document to start the fun read. Although, I’ll also direct you to specific sections that might be of interest to you below.

In this post, I’ll just cover the EHR certification flexibility. You can see the meaningful use extension and delay timelines here. Here’s the important chart when talking about the EHR Certification flexibility (CMS Calls it CEHRT):
2014 EHR Certification Flexibility - CEHRT

The EHR Certification flexibility has a number of major talking points:

  • What Does “unable to fully implement” and “2014 Edition CEHRT availability delays” mean?
  • Fairness of EHR Certification Flexibility
  • 90 Day Reporting Period in 2015 Instead of 365 Days
  • Future Audits

What Does “unable to fully implement” and “2014 Edition CEHRT availability delays” mean?
On page 62 of the rule is the best description of the rule’s intent. It says that if you want to take advantage of this EHR flexibility, then they (Eligible providers or hospitals) “must attest that they are unable to fully implement 2014 Edition CEHRT because of issues related to 2014 Edition CEHRT availability delays when they attest to the meaningful use objectives and measures.” This basically covers the asterisk in the chart above.

This piece of the rule was so unclear that CMS in the final rule used 12 pages (pg. 36-48) to describe when this rule would apply and when it would not apply. CMS tried to make this apply as broadly as possible, but I think they also wanted to encourage as many organizations as possible to not use the exception.

My short summary of these 12 pages is: If you have the 2014 Certified EHR software and can attest to meaningful use stage 2, then you better go ahead and do it. Trying to find a loophole that allows you to avoid meaningful use stage 2 and just do MU stage 1 puts you at risk during a future meaningful use audit.

Of course, if you’re EHR vendor hasn’t provided you the proper software/updates/training, etc that you require to attest to meaningful use stage 2, then this rule will apply. CMS’ intent seems pretty clear. If you can attest to meaningful use stage 2, then you should. However, if your EHR vendor prevents you from being able to attest, then they don’t want to hold the providers accountable for the EHR vendors failure. Although, CMS notes multiple times in the final rule that they don’t want to point blame at the EHR vendors since it could have been other outside issues (ie. final rule was late, ONC-ACB’s were backlogged, etc) that caused the EHR vendors to not be ready.

I wonder if one of the unintended side effects of this rule will be EHR vendors taking their sweet time releasing and rolling out their 2014 Certified EHR product and updates. It’s too late for this in the hospital setting since hospitals have to do a full year of MU 2 on a 2014 Certified EHR starting October 1, 2014. However, the same might not be true on the ambulatory side where they have until the end of the year to start on meaningful use stage 2.

I’ll be interested to see how many organizations are able to take advantage of this delay. Had this rule been finalized in early 2014, it would be a very different story. However, at this late date, I’m not sure that many providers or hospitals will be able to change course.

I mostly feel bad for those organizations that rushed their EHR implementations onto barely-beta-tested 2014 Certified EHR software and will now have no choice but to go forward with meaningful use stage 2. This change in rule makes many of these organizations wish they’d slowed their implementation to make sure they’d done it right and they’d have also only been required to do MU stage 1.

Fairness of EHR Certification Flexibility
The last paragraph above highlights part of the reason why many providers feel that this EHR certification flexibility is unfair. While it’s not a direct penalty on organizations that were on top of things, the change rewards those organizations that didn’t take the risks, push their EHR vendors, and push their implementation timelines to meet the MU stage 2 requirements. The reward an organization gets for going after MU stage 2 is that they have to do a lot more work (Yes, MU2 is A LOT more work) while their procrastinating competitors get to do the much simpler MU1.

This was such an important complaint that CMS addressed these comments in two different places in the final rule (pg. 21-22 and pg. 48-50). CMS tries to argue that in their research they didn’t see providers that were deliberately trying to delay MU stage 2, but found that providers wanted to do MU stage 2, but their EHR vendors weren’t ready. I’d suggest that CMS may want to dig a little deeper.

However, let’s set providers aside for now and assume that they all want to do MU stage 2, but their EHR vendors just aren’t ready for it. This EHR certification flexibility still lets EHR vendors who procrastinated their 2014 EHR certification off the hook. In fact, it rewards them and their users for not performing well. Once again, CMS doesn’t want to point the finger at EHR vendors, but will blame themselves for not finalizing the rule fast enough and ONC-ACB’s for having a backlog. However, if you’re an EHR vendor who’s been 2014 Certified for a while now, no doubt this rule makes you angry since it rewards your competitors in a big way (intended or otherwise).

Certainly there are a lot of reasons why an EHR vendor isn’t yet ready to be 2014 Certified. However, most of them have little to do with the rule making process and the EHR certification backlog. Some freely admit it, and others hide behind excuses. I think CMS realized this EHR Certification flexibility would benefit these EHR vendors, but they didn’t want to punish the providers who use these EHR software.

I still think the simple solution here was to extend this same flexibility to all providers and all EHR vendors. However, in the final rule CMS argues that doing so would reduced the amount of meaningful use stage 2 data that they’d have available to make the adjustments needed to meaningful use stage 3. I understand how a provider doing MU stage 2 this year might feel like the government’s guinea pig. We need you to do MU stage 2 so we can figure out how to make it right in MU stage 3. CMS also argues that they need more people on meaningful use stage 2 in order to push their agenda and the intent of the HITECH act forward. What doesn’t seem aligned to me is the goals of meaningful use and providers’ goals. I think that’s why we see such a disconnect.

90 Day Reporting Period in 2015 Instead of 365 Days
This seems to be one of the most heated discussion points with the final rule. CHIME President and CEO, Russell P. Branzell, even suggested that “Now, the very future of Meaningful Use is in question.”

CMS’ comments about this (pg. 34-36) basically say that a change to the EHR reporting periods was not part of this proposed rule. Then, they offered this reason for why they’re not considering changes to the reporting periods:

We are not considering changes to the EHR reporting periods for 2015 or subsequent years in this final rule for the same reasons we are not considering changing the edition of CEHRT required for 2015 or subsequent years. Changes to the EHR reporting period would put the forward progress of the program at risk, and cause further delay in implementing effective health IT infrastructure. In addition, further changes to the reporting period would create further misalignment with the CMS quality reporting programs like PQRS and IQR, which would increase the reporting burden on providers and negatively impact quality reporting data integrity.

What this comment doesn’t seem to consider is what will happen if almost no organizations choose to attest to meaningful use because of the 365 day reporting period. Talk about killing the “forward progress” of the program. From a financial perspective, maybe that’s great for the MU program. CMS will pay out less incentive money and they’ll make back a bunch more money in the eventual penalties. However, it seems counter to the goal of increasing participation in the program. Personally, I’m not sure that the end of organization’s participation in meaningful use would be such a bad thing for healthcare. It would lead back to a more rationale EHR marketplace.

Future Audits
On page 55-56, the final rule addresses the concerns over audits. We can be sure that some organizations will be audited on whether they were “unable to fully implement 2014 Edition CEHRT because of issues related to 2014 Edition CEHRT availability delays.” Sadly, the final rule doesn’t give any details on what documentation you should keep to illustrate that you meet these requirements for which you will have to attest. The final rule just says that they’ll provide guidance to the auditors on this final rule and that audit determinations are finalized on a case by case basis that will cover the varied circumstances that will exist.

This wouldn’t give me much comfort if I was going through an audit. Not to mention comfort that the auditors wouldn’t interpret something differently. I’ll defer other audit advice to my auditor friends, since I’m not an audit expert. However, in this case you likely know how far you’re stretching the rule or not. That will likely determine how comfortable you’ll be if an audit comes your way. Now you can see why my advice is still, “If you have the 2014 Certified EHR software and can attest to meaningful use stage 2, then you better go ahead and do it.

Conclusion
I really see the meaningful use program on extremely shaky ground. I don’t think this final rule does much to relieve any of that pressure. In fact, in some ways it will solidify people’s bad feelings towards the program. We’ll see for sure how this plays out once we see the final numbers on how many organizations attest to meaningful use stage 2. I don’t think those numbers are going to be pretty and 2015 could even be worse.

Note: For those following along at home (or work), here’s the final rule that I reference above.

About the author

John Lynn

John Lynn

John Lynn is the Founder of HealthcareScene.com, a network of leading Healthcare IT resources. The flagship blog, Healthcare IT Today, contains over 13,000 articles with over half of the articles written by John. These EMR and Healthcare IT related articles have been viewed over 20 million times.

John manages Healthcare IT Central, the leading career Health IT job board. He also organizes the first of its kind conference and community focused on healthcare marketing, Healthcare and IT Marketing Conference, and a healthcare IT conference, EXPO.health, focused on practical healthcare IT innovation. John is an advisor to multiple healthcare IT companies. John is highly involved in social media, and in addition to his blogs can be found on Twitter: @techguy.

13 Comments

  • Funny, those simple diagrams they show just don’t do the 90 pages justice.
    Got to love the cubicle dweller that come up with this stuff.
    BTW, those first 10 pages will cure insomnia.

  • Another interesting point is, I’ve had clients and prospect call about a risk assessment tell me due to this final rule, they only need to attest for stage 1. This from folks who barely know a left click from a right click…sure…you’ve read all 90 pages.

    Like much in MU and HIPAA, the practice will read/hear what they want to hear, and move on.

    Many seem to take “unable to fully implement” as an excuse for “oops, I forgot to order that patient portal add-on thingy, oh well, unable to fully implement”.

  • The final rule introduces even more complexity into an already overly complex MU program. The decision tree for selecting the 2011/2014 certification and stage to which to attest may seem simple enough until considering the documentation necessary should the EH or EP be selected for an audit. The final rule does not provide sufficient details on what documentation should be retained if the decision is made to attest to a lower stage or EHR certification. There are also some other slight modifications buried within the responses to comments (for example, not needing to perform a public health test this year if a test had been performed in the previous reporting period, that are critical but buried within the document.

    This final rule did provide an opportunity to simplify the entire process but unfortunately this did not occur.

    Some consideration should have been given for organizations that are transitioning from Stage 1 to Stage 2 on January 1st because this can be a time consuming process for some EHRs.

    A 90 day reporting period is more than sufficient and should have been given consideration for the 2015 year because the workflows for core/menu objectives and CQMs become engrained and would continue even after the close of a reporting period.

    Scott M.

  • I think a lot of providers were going to have a cushion to fall back on if they couldn’t meet the Stage 2 measures. CMS very clearly states that is not the case, simply failing to meet the measures is not a reason.

    One section that I’m not sure they realize is still kind of murky revolves around the Direct measure. If Provider A refers most of her patients to Provider B who isn’t participating in MU, simply doesn’t have an EMR and doesn’t use Direct, can she document that and use that as a reason to attest to Stage 1 measures. Or does it only work if Provider B does have an EMR but hasn’t upgraded to a 2014 CEHRT yet?

    The diagrams are more of a hindrance than a help since they don’t even touch on the details. CMS lists 4 instances where providers could not use this option, but if all you look at is the diagram it isn’t really clear that this is the case.

  • More rules. More complexity. Stick a fork in MU, its done! According to a recent article in Health Data Management, a paltry 1898 EP’s had attested for Stage 2 MU as of Aug. 1. That’s less than 1/2 of 1% of all EP’s!! In the same article only 78 hospitals had attested. Again, that is less than 1% of all EH’s. Even if there is some kind of miraculous surge….it’s unlikely we’ll see anything close to 10% participation. what a waste of time and resources! Billions spent. For what? Good intentions?

  • Great post John. Enjoyed your commentary on the impact of the final rule. I agree that those that procrastinated actually benefit from the new rule and those that blazed ahead are now being “punished” for their effort. It isn’t logical and will just add more organizations to the we-aren’t-happy-with-MU list. In fact, when you add in the 365 day reporting period…well I think this is now the beginning of the end of the MU program. I believe many will simply drop out rather than expend more effort (and risk being punished for it). Sad.

  • Headline from an article from Heath Data Management today:
    Stage 2 MU Attestation Rate Remains Sluggish

    The numbers are NOT looking much better. The first paragraph reads: As of Aug. 25, 143 eligible hospitals and 3,152 eligible professionals have attested to Stage 2 meaningful use, according to the Centers for Medicare and Medicaid Services.

    We saw a 17% drop in participation for year two of Stage 1, it looks like we are now seeing well over a 95% drop in participation in the first year of Stage 2. MU is breathing it’s “last gasp”.

  • Bill,
    I agree, but unfortunately it’s likely to live on in a comatose state for a few more years and EHR vendors will have to answer to it.

    How long until a bill is passed which waives the penalties because it would penalize so many?

  • John, I think we”ll see legislation early next year after the midterm elections. I believe we will see a huge outcry from provider and hospital organizations soon. Because once they start falling short on meeting mu 2 measures (and believe me, they will), then realize that after doing all this extra work that not only are they not going to get an incentive, but will get a penalty, its going to be a game changer!

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