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Is hardship exemption law the death knell for Meaningful Use?

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There's been a lot of discussion about the new hardship exemption that President Barack Obama signed into law for the Meaningful Use program's 2015 reporting year. The law, part of the Patient Access and Medicare Protection Act, provides flexibility in applying for a hardship exception by enabling whole categories of eligible professionals and eligible hospitals to apply for one.

The law is still a bit vague. We know that this takes the Centers for Medicare & Medicaid Services off the hook of having to deal with the exemptions on a case-by-case basis, which considering how many providers were expected to file for one this year, would have created a massive backlog. We also know that professionals need to apply by March 15, 2016, and hospitals by April 1, 2016.

But we don't yet know what will be required in the application. We also don't know what categories CMS will create, or if the law will really work as a full blanket exemption for all participants, as some have stated.

To that end, I was somewhat surprised to read the interpretation of Dan Haley, general counsel for athenahealth, who called exemption for the 2015 year virtual proof that the Meaningful Use program is over.  

Haley wrote recently that since the law creates a blanket exemption and everyone qualifies for it, the program really isn't a program anymore, and "you might as well turn out the lights at MU-central and go home."  

"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," he said. "With that context it is hard to argue that MU has not run its course."

I'm not sure if I fully agree with Haley's premise. The flexible hardship exemption is a short-term fix meant to accommodate the problems incurred by providers who were informed by the proposed rule that the reporting requirement would be shortened from 365 to 90 days in 2015, but that CMS did not confirm this fact until the final rule was released in October 2015. The flexibility doesn't extend beyond the 2015 reporting period. The law the hardship exemption is a part of also does not pause, delay or end Stage 3 of the Meaningful Use program, which is still on track.

Indeed, Haley still recommended that providers who could attest for the 2015 reporting period should do so in case there's a backlash down the road, such as a reversal of the temporary reprieve or application of the hardship exemption being used against a provider in a different context, such as the Physician Compare rating website.   

But it's still an interesting concept. While there's been a lot of clamor by providers, analysts and legislators that the Meaningful Use program is past its prime and needs to be laid to rest, here a vendor is agreeing with them--the existence of the exemption signifies the end. Stick a fork in it; the program's done.

Of course, vendors don't have much to lose if the Meaningful Use program is declared over. Providers need EHRs more than ever due to the Medicare Access and CHIP Reauthorization Act and Merit based Incentive Program System and the move to coordinated care.

But the fact that Haley is acknowledging that so many providers will take the exemption may indicate that once they do so, many of them, particularly physicians, will simply not return to the program. So it makes one question just how viable the Meaningful Use program is, what resources should still be spent on it, and whether this development will have other long-term effects, such as on interoperability.   

It may be just one more unintended consequence on EHRs and Meaningful Use. A move to bridge a gap and ease providers' MU pain may just run the program into the ground. - Marla (@MarlaHirsch and @FierceHealthIT)

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