UPDATE: Not meeting, attesting to MU? Hardship exceptions available

February 12, 2016
AOA recommends members request exemption from penalty.

To avoid 2017 Medicare Electronic Health Record (EHR) Incentive Program penalties, AOA members who might not meet the 2015 meaningful use requirements should immediately apply for a hardship exception because there was no time to plan for the delayed program requirements.

Doctors—both attesting and not attesting to 2015 meaningful use—should consider applying for this exception in the event they fail attestation to avoid the 3% penalty on all Medicare medical eye care claims.

In October 2015, the Centers for Medicare & Medicaid Services (CMS) posted the Stage 2 Meaningful Use Program Final Rule after doctors began the presumed 90-day reporting period. This meant doctors had no time to prepare to meet the requirements for 90 days since the revised requirements weren't provided until fewer than 90 days remained in the year.

In frequently asked questions (FAQs) quietly posted last week, CMS clarified that the hardship exception for "extreme and uncontrollable circumstances" could be used for issues related to this delay to avoid the 2017 penalty.

Based on these changes and because applying for hardship exceptions does not adversely impact attestation for meaningful use, the AOA encourages members to apply for this hardship exception if they suspect they might not meet the meaningful use requirements, regardless of whether they attest for 2015 meaningful use.

"CMS issued the revised rule after we had to start meeting the meaningful use requirements, so this broad exemption is a blessing," says AOA President Steven A. Loomis, O.D. "Ensuring optometrists are not penalized in 2017 is the result of continued advocacy by AOA to improve the meaningful use program."

Members can apply for the "extreme and uncontrollable circumstances" hardship exception by selecting section 2.2d when completing the 2017 Medicare EHR Incentive Program Payment Adjustment Hardship Exception Application.

CMS must receive doctors' hardship exception applications by July 1, 2016.

UPDATE: Be wary of flawed hardship exception advice

Much like the mistaken reports that meaningful use was going to end, AOA has seen advice circulating to doctors of optometry that misconstrues the hardship exception. Members may want to read the CMS FAQs themselves—FAQ on final rule publication timing, and FAQ on the hardship exception documentation requirement—and should be aware that the AOA interpretation is shared by the American Medical Association (AMA). The AMA recently released a memo, How to Avoid the 2017 Meaningful Use Penalty, stating, "The AMA is encouraging ALL physicians subject to the 2015 Medicare MU program to apply for the hardship."

More on CMS guidance for documentation, delayed rulemaking

CMS guidance, released on Feb. 1, clarifies that these changes, directed by the Patient Access and Medicare Protection Act (PAMPA), will make it easier for doctors to apply for the above and other applicable hardship exceptions. Specifically, CMS updated FAQs related to the application's documentation requirements and delayed release of the final rule.

  • Documentation requirements for hardship exceptions
    CMS specified that doctors are not required to submit documentation for the hardship category selected as the agency will no longer review applications on a case-by-case basis.

    "CMS will review the application to record the category selected and use the identifying information to approve the hardship exception for each provider listed on the application. Providers should retain documentation of their circumstances for their own records, but no such documentation is required for review by CMS," the CMS FAQ states.

    Although CMS indicates that documentation isn't necessary for certain hardship exceptions, the AOA recommends members fully document what they submit to CMS in the event that auditors may want some documentation.

  • Delayed 2015 final rule release
    Additionally, the guidance goes on to clarify sub-category 2.2d (extreme and uncontrollable circumstances) of PAMPA, pertaining to EHR Certification/Vendor Issues (CEHRT Issues).

    According to the revised CMS FAQ: "If a provider is unable to meet the requirements of meaningful use for an EHR reporting period in 2015 for reasons related to the timing of the publication of the final rule, a provider may apply for a hardship exception."

Find new applications and instructions for exemption from the 2017 payment adjustment.

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