The Centers for Medicare & Medicaid Services (“CMS”) proposed Meaningful Use criteria to implement Stage 3 and allow eligible professionals, eligible hospitals and critical access hospitals (“CAHs”) to qualify for incentive payments (or avoid downward payment adjustments) under the Medicare and Medicaid Electronic Health Record (EHR) Incentive Program implemented by the Health Information Technology for Economic and Clinical Health (“HITECH”) Act of 2009. Then CMS made changes to Stage 1 and Stage 2 Meaningful Use criteria to better align with the proposed Stage 3 criteria just two weeks later.

On March 30, 2015, CMS published a long-awaited proposed rule which, if finalized, would implement Stage 3, making changes to the objectives and measures of meaningful use for providers effective in 2017 or 2018 (the “Stage 3 Proposed Rule”). According to an HHS fact sheet the Stage 3 Proposed Rule incorporates the following enhancements and benefits for providers:

  • Establishing a single, aligned reporting period for all providers based on the calendar year;
  • Allowing providers the option to start Stage 3 of meaningful use in either 2017 or 2018 (required in 2018), which gives providers an extra year to start;
  • Simplifying meaningful use objectives and measures and reporting requirements by allowing flexible measures under health information exchange, consumer engagement, and public health reporting that would fit their own patient population or practice;
  • Reducing the overall number of objectives to eight to focus on advanced use of EHRs;
  • Removing measures that are redundant or received wide-spread adoption; and
  • Aligning clinical quality measure reporting with other CMS programs;
  • Proposing flexibility for health information exchange objectives that aim to make sure providers caring for the same patient are sharing information with one another so they can more effectively coordinate the care they provide;
  • Proposing the use of application programming interfaces that could enable the development of new functionalities to build bridges across systems and provide increased data access.

The Stage 3 Proposed Rule also focuses on the advanced use of certified EHR technology (“CEHRT”) to promote health information exchange and improved outcomes for patients. As a companion to the Stage 3 Proposed Rule, on March 30, 2015, the Office of the National Coordinator for Health Information Technology (“ONC”) also published a proposed rule (the “2015 Edition Proposed Rule”), adopting a set of certification criteria that align with proposals for Stage 3. Among other proposed changes, the 2015 Edition would establish the capabilities and specify the related standards and implementation specifications that CEHRT would need to include to, at a minimum, support the achievement of meaningful use when such edition is required.

Under the Proposed Rule, all providers would be required to attest to Stage 3 beginning in 2018 using 2015 Edition CEHRT—even providers who are attesting for the first time in 2018. CMS expects Stage 3 of meaningful use to be the “final stage,” and further, in an effort to simplify a complex system, the concept of “stages” is being phased out. Soon alleligible professionals, eligible hospitals and CAHs will meet the same Meaningful Use criteria—Stage 3. Compliance with Stage 3 would be optional for 2017, and beginning in 2018 all providers would report on the same definition of meaningful use at the Stage 3 level regardless of their prior participation, “moving all participants in the EHR Incentive Programs to a single stage of meaningful use in 2018.”

Between now and 2018, CMS also proposes modifications and simplifications to Stage 1 and Stage 2 of the EHR Incentive Programs in order to better align the objectives and measures of meaningful use for 2015 through 2017 with the upcoming Stage 3 requirements. On April 15, 2015, CMS published a proposed rule (the “Stages 1 and 2 Proposed Rule”), that, if finalized, are intended to make it easier for providers to meet meaningful use requirements.

In the Stages 1 and 2 Proposed Rule, CMS proposed changes to the EHR reporting period so that the period for all participants is based on the calendar year beginning in 2015. The EHR reporting period for eligible hospitals and CAHs was initially based on the federal fiscal year (October 1 through September 30), so this change standardizes the review period for eligible professionals, eligible hospitals and CAHs. In addition, new participants in the EHR Incentive Program would attest to Meaningful Use for an EHR reporting period of any continuous 90-day period within the calendar year for 2015 and 2016. For 2015 only, all eligible professionals (not just new participants) would be permitted to attest to an EHR reporting period of any continuous 90-day period within the 2015 calendar year, while all eligible hospitals and CAHs (not just new participants) would be able to attest to an EHR reporting period of any continuous 90-day period within the period beginning October 1, 2014 and the close of the 2015 calendar year.

In the Stages 1 and 2 Proposed Rule, CMS also proposed to streamline the Meaningful Use objectives and measures to remove ones identified as “redundant, duplicative, or had reached a performance level considered to be ‘topped out.’” For example, CMS proposed to remove reporting requirements for the following measures: vital signs, smoking status, lab results, family health history, among others. CMS is quick to note, however, that providers should not stop performing these activities as they consider them “best practices” that benefit both providers and patients. Rather, CMS is no longer requiring “providers to calculate and attest to the results of these measures in order to demonstrate meaningful use beginning in 2015.”