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Obama Signs MU Hardship Exemption Bill into Law

December 29, 2015
by Rajiv Leventhal
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Some confusion lingers on the bill’s language, however

President Obama, on Dec. 28, signed into law the Patient Access and Medicare Protection Act, a bill designed to make it easier for healthcare providers to receive hardship exemption from financial penalties for failing to meet Stage 2 meaningful use electronic health record (EHR) requirements.

Senator Rob Portman (R-Ohio) introduced the Patient Access and Medicare Protection Act (S. 2425) and it was passed by both chambers of Congress on Dec. 18. The bill is designed to ensure eligible providers “flexibility in applying the hardship exception for meaningful use for 2015 EHR reporting period for 2017 payment adjustments.” Under the bill, physicians have until March 15, 2016 to apply for exemption, while the deadline for hospitals is April 1.

Specifically, as Leslie Kriegstein, interim vice president of public policy at the College of Healthcare Information Management Executives (CHIME), reported in last week's Washington Debrief, "The legislation would allow eligible hospitals and eligible physicians who find it impossible to comply with the modified Stage 2 rule released into the final 90-day reporting period of 2015 to apply under the 'unforeseen circumstances' category. The legislation enables the Centers for Medicare & Medicaid Services (CMS) to grant hardships not just on a case-by-case basis, but also to 'categories' with the deadline of March 15, 2016 for EPs and April 1, 2016 for EHs, after which time CMS would still have the case-by-case authority to grant hardship exemptions until July 1, 2016.” Passage of this narrowly focused legislation is indicative of the growing bipartisan interest in meaningful use on Capitol Hill, Kriegstein said in her report.

The bill included legislative language based on H.R. 3940, the Meaningful Use Hardship Relief Act, which was sponsored by Rep. Tom Price, M.D. (R-Ga.) and co-sponsored by Rep. Renee Ellmers (R-N.C.). After S. 2425 was passed by Congress, Price said in a statement, "A patient-centered healthcare system relies on the principles of quality and responsiveness. The recent modifications rule for Stage 2 of the meaningful use program for electronic health records failed to offer physicians and hospitals with enough time to actually comply with the new requirements. Due to the tardiness of the final CMS rule, it is virtually impossible for doctors to meet the requirement deadlines. This much needed relief will make the hardship application process much easier for doctors to avoid penalties stemming from the Administration’s mistake, and thereby provide more time to care for patients.”

Indeed, several healthcare stakeholder organizations, including the American Medical Association (AMA), CHIME, and the American College of Physicians (ACP) have called on CMS to grant blanket hardship exemptions in 2015 due to the delayed release of the meaningful use modifications rule.

Nonetheless, there is some confusion regarding the bill’s language. A Dec. 22 Politico morning eHealth report said that the bill “doesn't clearly outline which categories of eligible professionals would be newly eligible for hardship exemptions this year.” Specifically, in regards to the language in the bill taken from the Meaningful Use Hardship Relief Act, the Politico report continued, “Text of a similar bill [H.R. 3940] authored by Rep. Tom Price states the hardship is ‘due to the delay in timely publication of the Stage 2 meaningful use rule.’ However, Price's version was dropped in favor of the less clear language sponsored by Sen. Rob Portman. CMS apparently thinks the Portman bill works better for the agency, but the lack of clarity is worrying some, according to multiple lobbyists we spoke with.”

The report continued, “Republican Pete Sessions [Texas], who told stakeholders Friday that, based on what was told to him at a Dec. 8 meeting with the agency, ‘CMS would exempt all applications upon receipt.’ Sen. Rob Portman’s office, however, told Morning eHealth that ‘CMS still must review on a case-by-case basis.” That's not the same as giving CMS the ability to batch-process the applications they are sure to receive,” the Politico report concluded.

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