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Meaningful Use Alert: CMS Finalizes Rule on the 2014 Program Year and Stage 2

on Monday, 8 September 2014 in Health Law Alert: Erin E. Busch, Editor

On Friday, August 29, 2014, CMS published a Final Rule providing additional flexibility to providers who have had difficulties implementing 2014 Edition certified electronic health record technology (“CEHRT”). This rule adopts the proposed rule published May 23, 2014.

Under the Final Rule, Eligible Professionals, Eligible Hospitals and CAHs that could not fully implement 2014 Edition CEHRT for the 2014 reporting year because of delays in 2014 Edition CEHRT availability can continue to use 2011 Edition CEHRT or a combination of 2011 Edition and 2014 Edition CEHRT for the applicable 2014 reporting period. The Final Rule outlines three participation options for providers, To view the chart which CMS has outlined, click here.

The Final Rule provides some clarification on the definitions of “2014 Edition CEHRT availability delays” and “unable to fully implement.” The Final Rule states that the availability delay “must be attributable to issues related to software development, certification, implementation, testing, or release of the product by the EHR vendor which affected 2014 CEHRT availability, which then results in the inability for a provider to fully implement 2014 Edition CEHRT.” Thus, the delay must result from some delay by the vendor—a provider who delays purchasing software or fails to train staff would not be permitted to use the options outlined in the Final Rule.

In discussing the meaning of “unable to fully implement,” the Final Rule states that it is the intent for this to have the “broadest application.” Instead of providing an exhaustive list of specific scenarios, the Final Rule provides examples of situations that would not be permissible reasons to use the options for CEHRT because they do not constitute an inability to fully implement 2014 Edition CEHRT:

  • Financial issues, including costs associated with implementing, upgrading, or installing CEHRT. The Final Rule mentions that providers with substantial costs related to insufficient internet access or broadband access, for example, may apply for a hardship exception.
  • Issues related to Meaningful Use objectives and measures, including failure to meet a measure threshold or failure to conduct necessary activities. There is a limited exception for providers who cannot meet the Stage 2 requirement for transmission of an electronic summary of care document for more than 10% of transition or referrals, when the recipients experienced availability delays preventing them from implementing the functionality required to receive the applicable documents. The Final Rule stipulates that the referring provider must retain supporting documentation to this effect.
  • Staff changes and turnover. Importantly, however, “an inability to train staff, test the updated system, or put new workflows in place because of delays associated with the installation of 2014 Edition CEHRT constitutes a failure to fully implement, and provides sufficient rational to use the options for CEHRT.” The Final Rule does not give a hard date or set time frame, but indicates that long delays between installation of software and beginning to train staff would not be sufficient to establish a failure to fully implement due to a delay in availability.
  • Provider inaction or delay in implementing the software, such as waiting to engage a vendor or refusing to purchase a software update.

Note that providers that have installed 2014 Edition CEHRT may be able to use the options for CEHRT. Although the Final Rule does not describe all possible scenarios, delayed or missing software updates or unreliable software are specifically listed as permissible reasons for a provider with installed software to use the CEHRT options. Additionally, providers that have implemented CEHRT for only part of a reporting period can use the CEHRT options.

Providers must use 2014 Edition CEHRT for EHR reporting periods in 2015 and subsequent years.

In addition, the Final Rule extends Stage 2 through 2016 for providers that first became meaningful EHR users in 2011 or 2012. These providers will begin Stage 3 in 2017.

Laura A. Feldman

Michael W. Chase

1700 Farnam Street | Suite 1500 | Omaha, NE 68102 | 402.344.0500