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Meaningful Use: When the Exemption Becomes the Norm

by Dan Haley, SVP and General Counsel

Providers trying to keep up with the recent twists and turns of the federal Meaningful Use (MU) program could be forgiven an inclination to the proverbial long walk off a short pier. In the latest round of semi-insanity, CMS finally published the modified MU Stage 2 rule in October 2015, which is intended to apply to... 2015. In a rare mass coupling of stakeholder lions and lambs, provider groups and health IT vendor organizations alike rose up in unison and declared, in so many words, "Dude! That's just nuts."

Unsurprisingly, Congress listened. And in an equally-rare demonstration of bipartisanship in health policy, both Chambers overwhelmingly passed legislation on voice votes authorizing (or mandating--opinions vary at press time, and the bill has yet to be signed into law) CMS to issue so-called "hardship exemptions" to all providers who apply for them. That means providers who are unable, for whatever reason, to attest to MU Stage 2 in 2015 will be spared the reimbursement penalties set to hit in 2017. 

At the risk of stating the obvious, when every program participant is potentially exempt from the application of what was heretofore deemed a key component of said program, there really isn't a program any more. Put another way, when the exemption becomes the norm you might as well turn out the lights at MU-central and go home. A more vivid illustration of the fact that the MU program has probably passed the end of its productive life could hardly be imagined. But that's a rant for another day.

Back in 2014 when CMS first introduced the notion of an MU "hardship exemption" I wrote in The Health Care Blog, "An EHR should not be a federally-subsidized ‘hardship.’” Though the reason for this year's far-broader application of the hardship concept is different (government ineptitude rather than vendor failings) the point stands. By definition, every single EHR that qualifies its user for one of CMS' pending blanket exemptions will have qualified for a taxpayer subsidy under the MU program and then failed (in many cases failed again!) to meet the standards governing that program. With that context it is hard to argue that MU has not run its course. 

Happily, athenahealth clients do not need to concern themselves with this spiraling dysfunction. Our athenaClinicals EHR is not a "hardship." As CMS and Congress continually move the MU bar, our clients keep clearing it. That is a point of tremendous pride around here (even as we sympathize and agree with our clients' frustrations over the increasing disconnect between MU requirements and improving patient care). We will continue to help our clients achieve those results for as long as it is necessary.

But wait, you ask: Why should I go to the effort to attest if I could can get an exemption? Fair question. The answer is simple. As any physician with significant experience responding to federal mandates knows all too well, the government's arbitrary caprice taketh away with at least as much frequency as it giveth. The requirements from which a temporary reprieve is given today could easily be used in related, non-exempt contexts, such as: performance measurements under MACRA (the statutory framework that replaced the Sustainable Growth Rate); CMS' Physician Compare rating web site; and-on. And of course the work required of an athenahealth practice to successfully attest at this point is relatively insignificant. 

We and others will get our clients over this hump, setting them up for success down the road regardless of where the government chooses to set the bar. So relax, enjoy the holiday, and leave the worrying about MU, hardship exemptions, and the ever-looming next-federal-shoe-to-drop to us.

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