CMS, ONC Adopt EHR Standards Flexibility for Eligible Providers; Delay Start of Stage 3

by King & Spalding
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On August 29, 2014, CMS and the Office of the National Coordinator for Health IT (ONC) issued a final rule adopting the agencies’ proposal to grant flexibility for eligible providers regarding which edition of certified EHR technology (CEHRT) they may use to attest as Meaningful Users in the 2014 reporting period. Eligible providers that have been unable to fully implement 2014 Edition CEHRT due to vendor delays may select one of several combinations of CEHRT editions and Meaningful Use criteria to which to attest as Meaningful Users under the Medicare and Medicaid EHR Incentive Programs. In addition, the final rule adopts the agencies’ proposal to delay the implementation of Stage 3 Meaningful Use criteria until January 1, 2017.

The final rule will apply to eligible providers scheduled to attest to either Stage 1 or Stage 2 Meaningful Use measures in 2014. The following chart sets forth the varied options available to eligible providers on either Meaningful Use timeline.


If you were scheduled to demonstrate:

You would be able to attest for Meaningful Use:

Using 2011 Edition CEHRT to do:

Using 2011 & 2014 Edition CEHRT to do:

Using 2014 Edition CEHRT to do:

Stage 1 in 2014

2013 Stage 1 objectives and measures

2013 Stage 1 objectives and measures
-OR-
2014 Stage 1 objectives and measures

2014 Stage 1 objectives and measures

Stage 2 in 2014

2013 Stage 1 objectives and measures

2013 Stage 1 objectives and measures
-OR-
2014 Stage 1 objectives and measures
-OR-
Stave 2 objectives and measures

2014 Stage 1 objectives and measures
-OR-
Stage 2 objectives and measures

The final rule provides some clarification regarding what it means for a provider to have been unable to “fully implement” 2014 Edition CEHRT. CMS stresses that while the particular difficulties an eligible provider experienced in implementation are numerous, such difficulties must stem from vendor delays in making available 2014 CEHRT. These delays may include vendors receiving untimely certification of their 2014 CEHRT or a vendor’s untimely installation of updates to a provider’s 2011 Edition CEHRT. The final rule states that the following circumstances are not sufficient for an eligible provider to rely on the new flexibility options: inadequate provider resources to acquire available 2014 Edition CEHRT; turnover in provider staff; or general inability to satisfy Meaningful Use measures.

Under the final rule, eligible providers that believe vendor delays have caused their inability to fully implement 2014 Edition CEHRT may submit an attestation with their 2014 Meaningful Use data and must maintain documentation of such delays in the event of an audit. The final rule also provides that the flexibility is available only for the 2014 reporting year, and the agencies expect that all providers will have fully implemented the most recent edition of CEHRT in time for the 2015 reporting period.

The final rule is available here.

Reporter, Christopher Kenny, Washington D.C., +1 202 626 9253, ckenny@kslaw.com.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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