Bill expands providers' eligibility for Stage 2 hardship exemptions  
On Dec. 28, 2015, President Obama signed into law the Patient Access and Medicare Protection Act, which creates a blanket hardship exemption from penalties under the Electronic Health Records (EHR) meaningful use program for the 2015 reporting period. The bill, introduced by Sen. Rob Portman (R-Ohio), is based on language included in H.R. 3940—the Meaningful Use Hardship Relief Act, sponsored by Rep. Tom Price, MD (R-Ga.)—and passed unanimously in both the House and Senate. Under the legislation, physicians have until March 15, 2016 to apply for an exemption.

The exemption is meant to address issues related to the delayed final rule that added flexibility to Stage 2 of the program. Proposed in April 2015, the modifications included a move to standardize the 2015 reporting period to 90 consecutive days of achieving meaningful use criteria rather than the full calendar year that was expected. However, the final rule was released in October 2015 with fewer than 90 days left in the year. Combined with the addition of several previously unforeseen requirements, this made it difficult for physicians to meet the new criteria and created undue hardships that would have hindered physicians' abilities to provide the highest quality care to their patients.

As a result, the AAOS urged the Centers for Medicare & Medicaid Services (CMS) to "establish an additional hardship exemption category for physicians who could not anticipate new program mandates so late in the year." Additionally, AAOS members were urged to take grassroots action and contract their legislators in support of legislative measures to address the issue.

These efforts sent a strong message that physicians need relief from this highly burdensome program. In addition to the blanket exemption (by law, all hardship applications will be accepted until March 15, 2016), the legislation also ensures a less tedious procedure to apply for a meaningful use exemption and asks CMS to alter their procedures for this exemption process, creating an easy interface. Without this legislation, CMS could only grant such exemptions on a case-by-case basis.

"We were pleased to learn that both the House and Senate passed last-minute legislation that allows all providers to more easily apply for an exemption to the 2015 meaningful use Stage 2 reporting rules," stated Thomas C. Barber, MD, in a message to AAOS members. "Thank you for all of your hard work and participation in our advocacy efforts this year, especially with this important issue."

"We recognize that the administration has repeatedly failed to offer patients, providers, and the hospital community with the resources and communication needed to provide top-notch health care," Rep. Renee Ellmers (R-N.C.) said after the legislation passed the House. "By passing this bill on unanimous consent today in the House, Congress is taking a giant step in supplying relief to the provider community—and helping patients receive better, seamless care. I will continue to keep an eye out for CMS implementation and oversight of this policy to ensure that the administration is sticking to congressional intent in order to provide relief for the medical community."

How CMS will implement the legislation remains to be seen, however, and some industry experts have expressed concern over the vagueness of the language. Further, Stage 3 of the meaningful use program is still on track to start in 2017 despite strong feedback from the provider community and Congress asking CMS to pause and reevaluate the program. AAOS recently sent formal comments to CMS urging a delay in implementation of Stage 3 due to the shortcomings in Stage 2.

"We are concerned that the requirements will not be achievable by Jan. 1, 2018, the date given by CMS, given technology limitations outside of physician control," wrote AAOS President David D. Teuscher, MD, in a comment letter to CMS last December. "Health [information technology] is just beginning to show success in the exchange of health information, but clarity, standards, and practical solutions remain as the major issues standing in the way of interoperability. … Challenges remain despite our desire to adopt EHR technology. The amount of time orthopaedic surgeons would spend trying to meet the Stage 3 objectives would ultimately result in less time treating patients, thereby reducing patients' access to care."

The letter also addressed issues specific to orthopaedic care, highlighting that as surgical specialists, orthopaedic surgeons have unique health information technology (HIT) needs and as such, specialty-specific meaningful use standards and performance measures are needed for all orthopaedic treatment domains.

"We support the common goals of improving quality and providing appropriate documentation of patients' medical care, but we are concerned the complete set of objectives remains more relevant to primary care physicians, while disadvantaging specialty care physicians," wrote Dr. Teuscher. "As such, we encourage CMS, in conjunction with the Office of the National Coordinator and the HIT Policy and Standards Committee, to create specialty-specific meaningful use standards for surgical specialists concurrent with promulgating the meaningful use standards already published for primary care physicians. The AAOS is ready to support CMS efforts to create meaningful use criteria specific to surgical specialists, should CMS choose that direction."

For the latest information on meaningful use and other HIT issues, visit http://www.aaos.org/Advocacy/HIT

Elizabeth Fassbender is the communications manager in the AAOS office of government relations. She can be reached at fassbender@aaos.org