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Meaningful Use Final Rules Released

on Monday, 16 November 2015 in Health Law Alert: Erin E. Busch, Editor

CMS recently released final rules for the Electronic Health Records Incentive Program (“Meaningful Use”). The final rules include modifications for program years 2015 through 2017 and also include the Stage 3 objectives and measures for eligible hospitals (“EHs”), critical access hospitals (“CAHs”) and eligible professionals (“EPs”). CMS’ goal is to ultimately expand the use of electronic health record (“EHR”) technology while reducing reporting burdens. Unlike most final rules, the Meaningful Use rules include a comment period, indicating the possibility for further revision of the criteria. The comment period is open until December 15, 2015. Below are highlights of the final rules.

2015 Through 2017 (Modified Stage 2)

In an effort to reduce the complexity of the program, CMS moved away from the “Core” and “Menu” objectives and established a single set of objectives for EHs, CAHs, and EPs. The modified Stage 2 approach includes nine objectives for EHs and CAHs; and 10 objectives for EPs. Many of the objectives are similar to the previous Core and Menu objectives (for example, the requirement to conduct or review a security risk analysis). Other objectives were modified to eliminate redundant and duplicative reporting.

Two objectives were significantly modified – (1) patient electronic access (patient portal); and (2) secure messaging. The patient electronic access objective (for EHs, CAHs, and EPs) has two separate thresholds. The first measure remains unchanged for 2015-2017, and requires that more than 50 percent of unique patients be provided timely access to view, download, and transmit their health information. The second measure previously required that at least 5 percent of patient actually viewed, downloaded, or transmitted their health information. For many providers, this second measure proved difficult to achieve. As a result, for 2015 and 2016, the second measure was revised to require that 1 patient view, download, or transmit information during the reporting period. The threshold increases back to 5 percent in 2017 and up to 10 percent in Stage 3.

The secure messaging objective (EPs only) is also a two-part objective. The second measure previously required at least 5 percent patient participation. For 2015 and 2016 the measure removes patient participation and simply requires EPs attest to whether the capability for patients to send and receive electronic messages was fully enabled during the reporting period. However, EPs should continue to encourage patient participation, as the measure requires 5 percent patient participation in 2017 and 25 percent patient participation in Stage 3.

CMS also revised the EHR reporting period for all providers. For 2015, all providers must attest to 90 days of Meaningful Use tied to the calendar year. Previously, EHs and CAHs reported based on the Federal fiscal year (October 1 to September 30). For 2016 and 2017, the EHR reporting period is a full calendar year. Below is a summary of the revised reporting periods:

  • 2015 (EHs and CAHs): 90-day period between October 1, 2014 and December 31, 2015.
  • 2015 (EPs): 90-day period between January 1, 2015 and December 31, 2015.
  • 2016 and 2017: (All providers): Entire calendar year.

Due to the change to a 90-day reporting period for 2015, the CMS Meaningful Use attestation website will not be available until January 4, 2016 and will remain open through February 29, 2016.

Meaningful Use Stage 3

CMS intends for Stage 3 to be the final stage of Meaningful Use. CMS’ goal is to build on the structure of the previous stages and align Meaningful Use with other CMS initiatives and regulations, including the National Quality Strategy.

Early adopters who choose to move to Stage 3 in 2017 will have a 90-day reporting period. All other providers who begin Stage 3 in 2018 will report based on a full calendar year.

Stage 3 has 8 objectives for all providers that are broken into 2 categories – (1) objectives that support clinical effectiveness and patient safety; and (2) objectives that support health information exchange (“HIE”). The information exchange-related objectives are meant to build on the current transmission standards by incorporating receipt standards and consumption requirements for HIE. Updating the standards in this way will hopefully mean seamless transactions of health information between providers.

Two objectives that have received much attention relate to patient electronic access and coordination of care through patient engagement. These objectives significantly increase the prior stages’ involvement of patients. For example, the electronic access objective requires that providers allow patients access to health information using application programming interfaces (API) (for example, mobile applications on smartphones and mobile devices). Currently many patient portals are not configured with API specifications and must be accessed using traditional computers. CMS believes that by 2017 and 2018 many patients will shift away from traditional patient portals and want to access information through APIs.

The coordination of care objective also recognizes that patients will likely move away from traditional patient portals. The measures require that patients view, download, or transmit to a third party their health information OR access their information through an API. In addition, providers must have the ability to integrate health data from a nonclinical setting (for example, incorporation of health data from a Fitbit or other personal health monitoring device).


Overall, the Stage 2 modifications will ease the burden for providers who have struggled with Meaningful Use implementation at a facility level and in terms of patient engagement through the EHR. However, this is only short term relief, and all providers should continue to make Meaningful Use a priority. Implementing the modified rules and timelines for 2016 and 2017 as well as Stage 3 will require careful planning and coordination with providers, software vendors, information technology personnel, and patient advocates.

Michael W. Chase

Abigail T. Mohs, Law Clerk

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