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EHR Certification Flexibility Final Rule Commentary and Analysis

Posted on September 3, 2014 I Written By

John Lynn is the Founder of the HealthcareScene.com blog network which currently consists of 10 blogs containing over 8000 articles with John having written over 4000 of the articles himself. These EMR and Healthcare IT related articles have been viewed over 16 million times. John also manages Healthcare IT Central and Healthcare IT Today, the leading career Health IT job board and blog. John is co-founder of InfluentialNetworks.com and Physia.com. John is highly involved in social media, and in addition to his blogs can also be found on Twitter: @techguy and @ehrandhit and LinkedIn.

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.

Meaningful Use Audits and Appeals

Posted on February 11, 2014 I Written By

John Lynn is the Founder of the HealthcareScene.com blog network which currently consists of 10 blogs containing over 8000 articles with John having written over 4000 of the articles himself. These EMR and Healthcare IT related articles have been viewed over 16 million times. John also manages Healthcare IT Central and Healthcare IT Today, the leading career Health IT job board and blog. John is co-founder of InfluentialNetworks.com and Physia.com. John is highly involved in social media, and in addition to his blogs can also be found on Twitter: @techguy and @ehrandhit and LinkedIn.

Meaningful Use Expert, Jim Tate, has a really interesting post up on his Meaningful Use Audits website that shares some of the details CMS offered on the EHR incentive audits and appeals process. I know many of my readers are worried about the meaningful use audits and are interested in these details.

You can go and read Jim’s full post for all the details, but I wanted to highlight a few of the items he mentions.

First, CMS said that 5-10% of providers will be subject to pre/post-payment EHR incentive audits. Jim calls this casting a “wide net” for the MU audits. Considering meaningful use stage 1, it makes some sense why the MU audit net would be cast wide. I’m sure many who read this have a friend who’s been through the audit.

I was really intrigued that CMS said “If a provider continues to exhibit suspicious/anomalous data, could be subject to successive audits.” This reminded me of something my brother said about the military. He said that if you got your uniform inspection right the first couple times, then the officers would stop looking at you quite as much. However, if you had something wrong at first, be ready to be scrutinized. It seems like CMS is taking a similar approach. As in most things in life, it’s just better to be honest and accurate. Then, you don’t have to look over your shoulder.

Jim also notes that CMS said that no risk profile will be made public. Basically, we aren’t going to get any clue into how they chose who to audit. Plus, Jim notes that the only next step if you fail an meaningful use audit is to file an appeal.

As long as we have meaningful use tied to EHR incentive money and payment adjustments, I don’t see these MU audits going anywhere. So, if you’re attesting to meaningful use, make sure you’re prepared for an MU audit if it comes.

First CMS Audits of Meaningful EHR Users – Meaningful Use Monday

Posted on July 2, 2012 I Written By

John Lynn is the Founder of the HealthcareScene.com blog network which currently consists of 10 blogs containing over 8000 articles with John having written over 4000 of the articles himself. These EMR and Healthcare IT related articles have been viewed over 16 million times. John also manages Healthcare IT Central and Healthcare IT Today, the leading career Health IT job board and blog. John is co-founder of InfluentialNetworks.com and Physia.com. John is highly involved in social media, and in addition to his blogs can also be found on Twitter: @techguy and @ehrandhit and LinkedIn.

In response to the topic I covered in my post on gaming the EHR incentive money, I got the following message:

Although I suppose this is within the letter of the law, it seems like a highly suspect practice, especially when CMS has said on conference calls that people who take the first check and subsequently drop out will be the first in line for audits.

I found this reply quite interesting. I’d never heard CMS say on a conference call that the first meaningful use audits would be those who got the first EHR incentive check and then chose to stop with meaningful use. Are there other readers that have heard this as well or that have heard or read similar things?

I’m a little torn on the idea of meaningful use audits. I’m certain that CMS will be doing meaningful use audits. It’s just a matter of time and how they’ll complete the audits of meaningful use. However, I don’t think they’re tremendously motivated to really clamp down on auditing those that adopt EHR software. I don’t think they want the bad PR of practices that have adopted EHR software getting audited and losing their EHR incentive money. They want doctors to adopt EHR and they want to pay them the EHR incentive money.

I guess the one exception to the above comment is those that really aren’t adopting EHR software and instead are just trying to game the system. CMS will likely be happy to make an example out of those doctors. Add in that Medicaid is done by the states and doesn’t require meaningful use and I’ll be interested to see how many doctors get the first Medicaid EHR incentive check and bypass the rest of the checks. I think there’s a lot of funny business that’s going to happen with the Medicaid EHR incentive money.

What else have you heard about EHR Incentive money audits and Meaningful Use Audits? I’m going to try and get some people familiar with other healthcare audits to share some thoughts on how to prepare to deal with the future meaningful use audits.