Details on the Meaningful Use Penalties Hardship Exception

CMS has recognized that some eligible professionals (EP) and eligible hospitals (EH) are struggling to meet Meaningful Use obligations, which makes them subject to payment adjustments under the American Recovery and Reinvestment Act of 2009 (ARRA). Payment adjustments are only applicable to the Medicare EHR Incentive Program and would be applied beginning on January 1, 2015 for Medicare eligible professionals and October 1, 2014 for eligible hospitals. But, CMS has advised that EPs (and EHs) may be exempt from payment adjustments if they can show that demonstrating Meaningful Use would result in a significant hardship.

On March 10, 2014 CMS issued 2014 CEHRT Hardship Exception Guidance for eligible professionals, eligible hospitals and critical access hospitals that are unable to implement the 2014 Edition of Certified Electronic Health Record technology in time to successfully demonstrate meaningful use for the 2014 reporting year.

While some information is included for EHs, this post focuses primarily on EPs.
What must EPs and EHs do to be considered for a hardship exception?

To be considered, an EP or EH must:
  1. complete a Hardship Exception application; and
  2. show proof of the hardship.
Applications for both EPs and EHs are available on the CMS website here.

Please be sure to review your application carefully because "all documentation is required at the time of submission and additional documentation will not be accepted."

Is there any liability associated with signing the Hardship Application?

Yes. Care should be taken when completing applications (as well as when making Meaningful Use attestations). Both the signatory and the eligible professional can be held personally liable for the information in the application. When signing the Hardship Application, the signatory attests that: "I understand that both the provider and I can be held personally responsible for all information entered."

On January 22, 2014, a Texas grand jury indicted a former CFO on allegations of EHR Meaningful Use fraud. The CFO was charged with making false statements to CMS and aggravated identity theft. If convicted, the CFO faces up to 5 years in federal prison for making a false statement and up to 2 years in federal prison for aggravated identity theft.
Find the Meaningful Use process confusing? Need help navigating the EHR incentive program?

Now sure what all of the Meaningful Use requirements mean?

Need help completing the Exception Application? Need help selecting the appropriate hardship reason?

Has you practice or hospital been overpaid under the Medicare EHR Incentive Program?

We can help!
Please contact us today.

We can also assist with resolving EHR vendor and other IT vendor disputes.

You may also want to read our article in the Journal of Health Care Compliance entitled, Doctors, Unhappy with their EHR System, Sue the Vendor in a Class Action: Now May Be the Time to Reassess EHR Solutions and Formulate a Plan to Remedy Deficiencies.

When are the applications due?

Applications from EPs must be submitted to CMS no later than midnight EDT on July 1, 2014.

Applications from EHs must be submitted to CMS no later than midnight EDT on April 1, 2014.

How will CMS notify me of its decision?

Notifications will be made to the e-mail address provided to CMS.

Can CMS's decision on the hardship be appealed?

No. According to CMS, "determinations made by CMS or their designee regarding Hardship Exceptions are final and cannot be appealed."

Will CMS be flexible in granting hardship exceptions?

In a speech at the National HIMSS Conference, CMS Administrator Marilyn Tavenner said that, while CMS would not delay the compliance deadline for Meaningful Use Stage 2, the agency would be more flexible in granting hardship exemptions to providers. [1] In a March 6, 2014 letter to Tavenner, Senators John Thune (R-SD), Lamar Alexander (R-TN), Richard Burr (R-NC), Tom Coburn, (R-OK), Mike Enzi (R-WY), and Pat Roberts (R-KS) requested that CMS “immediately clarify how the hardship exceptions will be granted.” [2]

What does it mean to have a "hardship?"

In the application, CMS has advised that "to file a Hardship Exception Application, the circumstance must be beyond the EP's control and the EP must explicitly outline how the circumstance significantly impaired the EP's ability to meet Meaningful Use."

CMS provides the following list of available reasons in the application:
  • Lack of Infrastructure - During any 90 day period from January 1, 2013 to July 1, 2014 (the beginning of the year that is 2 years before the payment adjustment year to July 1 of the year preceding the payment adjustment year), the EP was located in an area without sufficient Internet access to comply with the Meaningful Use objectives requiring Internet connectivity, and faced insurmountable barriers to obtaining such Internet connectivity.
  • Unforeseen and/or Uncontrollable Circumstances - During the 1 or 2 calendar years (2013 and 2014) preceding the payment adjustment year (2015), the EP faced extreme and uncontrollable circumstances that prevented the EP from becoming a meaningful EHR user. Some of these circumstances include:
    • Weather disaster
    • Unable to obtain data necessary to attest to Meaningful Use because the medical practice closed or otherwise went out of business
    • Bankruptcy or debt restructuring
  • Lack of control over the availability of Certified EHR Technology - EPs who had difficulty in meeting Meaningful Use during the period that begins 2 calendar years before the payment adjustment year through the Application deadline (January 1, 2013 -July 1, 2014) must demonstrate that:
    • EP practices at multiple locations, and
    • is unable to control the availability of Certified EHR Technology at one such practice location or a combination of practice locations, and
    • where the location or locations constitute more than 50 percent of patient encounters.
  • Lack of Face-to-Face Interaction - EPs who had difficulty in meeting Meaningful Use during the period that begins 2 calendar years before the payment adjustment year through the Application deadline (January 1, 2013 -July 1, 2014). 
    • This exception is only available if the EP can demonstrate: (1) lack of face to face interactions, and (2) lack of need to follow up with patients.
    • The EP must demonstrate (a) either a complete lack of face-to-face interactions and follow-up or (b) that the cases of face-to-face interaction and follow-up are extremely rare and not part of normal scope of practice for that EP.
  • 2014 EHR Vendor Issues - During the fiscal year (2014) preceding the payment adjustment year (2015), the EP's EHR vendor was unable to obtain 2014 certification or the EP was unable to implement Meaningful Use due to 2014 EHR certification delays.
The information needed to substantiate the hardship is relatively detailed. So, for example, if the reason for the hardship is lack of infrastructure because the cost of an Internet connection is prohibitive, the EP must provide a copy of the one-time infrastructure build-out cost quote from Internet Service Provider.

How long is the hardship exception valid?

If approved, the Meaningful Use hardship exception is valid for one (1) payment year only.

What if the hardship exception continues into the next  payment year?

CMS will require that the provider or the hospital complete a new application. But, per CMS, "in no case may a provider be granted an exception for more than 5 years."

Are there any EPs that are excluded from the payment adjustments or otherwise not required to complete the Exception Application?

Yes. The following EPs do not need to complete an application:
  • EPs that successfully met Meaningful Use in 2013 will be excluded from the payment adjustment and do not need to submit a Hardship Exception Application for Payment Year 2015.
  • Providers that are classified in the Medicare Provider Enrollment, Chain and Ownership System (PECOS) as having one of the following 5 specialty codes as their primary area of practice DO NOT need to submit the application because they will be granted a Hardship Exception and are automatically exempt from the 2015 payment adjustment based on the data in PECOS:
    • Diagnostic Radiology (30)
    • Nuclear Medicine (36)
    • Interventional Radiology (94)
    • Anesthesiology(05)
    • Pathology (22) 
  • New EPs enrolling in the Medicare program, DO NOT need to submit the application because they will be granted a Hardship Exception and are automatically exempt from the 2015 payment adjustment based on the data in PECOS.
  • Hospital-based EPs for 2012 or 2013, DO NOT need to submit the application because they will be granted a Hardship Exception and are automatically exempt from the 2015 payment adjustment based on the data in PECOS.
Related Posts

Posted by: Tatiana Melnik
Date: March 10, 2014
Ashley Gold, UPDATED: CMS to be More Flexible with Meaningful Use Stage 2 Hardship Exemptions, FierceHealthIT, Feb. 27, 2014.

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