EHR Incentive Program FAQ: Significant Hardship Exception Mechanism
A recent inquiry from an ACR member suggested the need for additional explanation about the concept of the “significant hardship exception” in the EHR Incentive Program (“meaningful use”).
This is what the law states:
“The Secretary [of Health and Human Services] may, on a case-by-case basis, exempt an eligible professional from the application of the payment adjustment . . . if the Secretary determines, subject to annual renewal, that compliance with the requirement for being a meaningful EHR user would result in a significant hardship, such as in the case of an eligible professional who practices in a rural area without sufficient Internet access. In no case may an eligible professional be granted an exemption under this subparagraph for more than 5 years.”
CMS’ March 7, 2012 Notice of Proposed Rulemaking (NPRM or “proposed rule”) to update the requirements of the EHR Incentive Program included three categories/types of significant hardship exceptions, and opened for discussion (but did not actually propose) a fourth. The three categories are:
- During the calendar year that is 2 years before the payment adjustment year, the EP was located in an area without sufficient Internet access to comply with the meaningful EHR use objectives requiring internet connectivity, and faced insurmountable barriers to obtaining such internet connectivity. Applications requesting this exception must be submitted no later than July 1 of the year before the applicable payment adjustment year.
- The EP has been practicing for less than 2 years.
- During either of the 2 calendar years before the payment adjustment year, the EP faces extreme and uncontrollable circumstances that prevent it from becoming a meaningful EHR user. Applications requesting this exception must be submitted no later than July 1 of the year before the applicable payment adjustment year.
- Lack of face-to-face or telemedicine interaction with patients, thereby making compliance with meaningful use criteria more difficult. Meaningful use requires that a provider is able to transport information online (to a PHR, to another provider, or to a patient) and is significantly easier if the provider has direct contact with the patient and a need for follow up care or contact. Certain physicians often do not have a consultative interaction with the patient. For example, pathologist and radiologists seldom have direct consultations with patients. Rather, they typically submit reports to other physicians who review the results with their patients;
- Lack of follow up with patients. Again, the meaningful use requirements for transporting information online are significantly easier to meet if a provider immediate contact with or follows up with or contact patients; and
- Lack of control over the availability of Certified EHR Technology at their practice locations.
The discussion in the NPRM included the possibility that the fourth category could potentially be limited to two years instead of the full five years allowed by the statute. CMS did not include any information or data that would support a two-year maximum.
ACR met with ONC and CMS leaders in October 2011 to discuss a variety of meaningful use topics, including the problems faced by hospital-located (but not “hospital-based”) EPs. Later, ACR, RBMA, MGMA, and HBMA met twice (in December 2011 and January 2012) with ONC/CMS staff and leaders after the CMS and ONC NPRMs were essentially drafted, but prior to completion of the OMB review process and public availability, to focus on the need for a significant hardship exception for hospital-located EPs. Everyone involved in these meetings agreed that CMS and ONC appeared to understand the need for a significant hardship exception category for EPs located in hospital-owned facilities that are not enabling compliance by onsite EPs. A couple months later, Marilyn Tavenner (Acting Administrator of CMS) sent the coalition a letter acknowledging CMS’ recognition of the problem. One could guess that the fourth category perhaps has a decent chance of making it into CMS’ final rule (hopefully in an improved form).
As of this writing, CMS’ final rule has not yet been written, so no one could possibly know how the significant hardship exceptions will be finalized. One can only know for certain that CMS must regulate within the confines of the statute.
Today, I had a voicemail from a member whose radiology group services two hospitals and five ambulatory imaging centers. The radiologist said that the group’s billing company claimed that regulatory changes were taking place in the EHR Incentive Program that would exclude them from participation. My assumption is the billing company representative was referring to the significant hardship exception concept, but that they fundamentally misunderstood CMS’ proposal as well as the current limitations of the law.