Certified EHR Systems are Affirming Flexibility

Today on our FAQ page, we are posting a revised Question and Answer regarding an issue that has recently caused confusion in our meaningful use regulations:  namely, the flexibility that providers have to defer performance on some Stage 1 meaningful use objectives; and how that squares with the requirement that providers must nonetheless possess fully-certified EHR systems. 

The new FAQ is meant to clarify this two-part requirement. But we should make it equally clear that our policy has not changed:

  • As stated in our final regulations, providers are given the flexibility to defer as many as five “menu set” objectives during Stage 1 and still achieve meaningful use. That means providers have flexibility to stage their adoption and implementation of EHRs in sync with their plans to defer certain menu set objectives.
  • But as also stated in our final regulations, we require EHR systems themselves be certified against all criteria adopted by the Secretary. So even though a provider has the option of deferring some objectives during Stage 1, the EHR system in the provider’s possession must be certified against all functions. Possession means having a legal right to access and use, at the provider’s discretion, all of the Stage 1 functions of a fully-certified system – but it does not imply that the provider must fully implement every one of these functions.

To understand this two-part approach, we need to look back to the development of the meaningful use regulations.  From the beginning, this process was aimed at achieving the right balance – a balance between the need to achieve effective and rapid adoption of EHRs throughout the United States; and at the same time to be realistic about the challenges facing providers on the road to meaningful use.

In our final regulations, I believe HHS achieved the needed balance:

  1. We identified the objectives that constituted meaningful use in Stage 1.  These objectives are part of a coherent, longer-range plan for EHR adoption and meaningful use. We will build on these objectives as we graduate through Stage 2 and 3 of the transition process.
  2. But at the same time, for these initial years, we recognized the challenge that this transition will pose to providers. For that reason, we gave providers flexibility in their own “staging” choices, permitting them to defer performing on as many as five of the 10 “menu set” objectives. This guarantee of flexibility, provided in our final regulations, has not been changed.

Why did we require that EHRs be certified as capable of meeting all of the certification criteria for meaningful use, even though we allowed flexibility concerning which criteria providers actually had to meet? There were several reasons.

First, our regulation stated that in Stage 2 of Meaningful Use, we will require that providers meet all the requirements laid out in Stage 1, including all 10 of objectives on the options menu. Having records capable of meeting all 10 objectives allows providers to get a head start on Stage 2 of meaningful use.

Second, we expect that some providers may try and fail to meet meaningful use objectives on one or more of the menu criteria.  If their records are not capable of meeting the other optional objectives, they may be unable to obtain and implement the capabilities they lack in time to qualify for meaningful use.  Thus, the requirement that certified EHRs possess the capability to meet all requirements actually gives providers the flexibility to experiment with multiple approaches to meeting meaningful use– and guarantees that if they fall short, they will not be left high and dry. This flexibility is only possible when the provider has access to certified technology for all Stage 1 functions.

The details of these requirements can be found in the new FAQ , and I invite you to read and comment. I hope it will be clear that these two elements are not in conflict, but rather represent the balance that has characterized the evolution of the meaningful use process.  Finally, I hope it will be clear that there has been no change in the guarantee of provider flexibility during Stage 1.

To achieve EHR-based health care, we need to build a strong technology foundation. But at the same time, we need to recognize that providers have varying circumstances and different needs, and we seek to accommodate those differences as we support the transition to EHRs. In that spirit, we are delivering on the promise in our final regulations to give providers the flexibility they require to succeed in adoption and meaningful use of EHRs.


  1. Brian Ahier says:

    Requiring providers to purchase EHRs which possess the capability to meet all requirements, even those they decided they won’t use, is NOT actually giving flexibility. You are taking the decision making away from individual providers and forcing them to purchase potentially unnecessary modules to protect them in case they fail to meet some of the menu criteria. While this may seem prudent, claiming that this actually provides greater flexibility is disingenuous. CMS provided greater flexibility in phasing in the meaningful use requirements. ONC has not budged on the certification requirements and is certainly showing no flexibility here…

    While I understand the rationale behind the requirement, this will ultimately result in fewer providers and hospitals being able to receive incentive payments in 2011.

  2. Bobby Lee says:

    I was “confused” about the all the confusion regarding this “issue”. I believe it was pretty clear on what one has to do to get an EHR certified and also pretty clear on what one (EH or EP) has to do to show MU.
    Whether custom developed or offered by a vendor, I believe any EHR should be certified following the same set of rules. I’m certain there are many arguments for exceptions, and some a good one at that, but we should expect the same requirements across the board in providing access to “complete” EHR and once we make an exception, there’ll be no end to the variations ONC must accommodate.
    I appreciate the new FAQs providing examples of how a business agreement can be arranged between EP/EH with the providers of EHR technologies such that EP/EH do not have to pay for those features/modules they won’t be implementing but still meet the first criteria of MU.

    • Derek Greenwood says:

      EHR is not all the same. Different professions require different requirements. This is one of the gross problems with a one size fits all solution. It makes the programs more expensive, more complicated and more of a PITA to use. Really it is government intervention at its worst. My clients will be offended even having the drug stuff in the program.

      Even if the government had good intention all it really is doing is creating an expensive problem. How about just rewarding doctors with better reimbursment if they do certain things. Thats it. Instead they through billions of dollars around that they don’t actually have making an overly complicated system that will fail.

      Chiropractic software will end up costing twice as much with no real gain

      • Trisha says:

        I agree with Bobby. I assumed that all of the certified EHRs had to follow the same set of rules so that the certification process stays consistent and does not become overly cumbersome. Although I can understand the frustration of software developers of specialty software (i.e. for chiropractors or dentists), I assumed that obtaining ONC certification of the EHR could potentially open the software to new markets and, thus, result in new revenue streams.

        I believe strongly in the value of well-implemented EHRs and I certainly hope that doctors will choose to implement an EHR, even if they are not pursuing meaningful use, because it can help them become an even better healthcare provider than they currently are by utilizing drug interaction alerts, preventative care reminders, etc. Our healthcare system in the U.S. is not perfect but I believe that it fosters innovation and, in most case, provides appropriate patient care. I look forward to the healthcare system moving from good to great and EHRs will be a significant piece of the puzzle.

  3. Derek Greenwood says:

    This is simply silly. We don’t sell to Medical Doctors at all but now we have to write a bunch of code that our clients will never use! I will now have to charge them more for code they will never use even in Stage II. This is completely against the idea of flexibility. This will result in fewer providers meeting MU.

  4. Mark Krushinsky says:

    I have concerns about the audit trails and data security issuees. We have been told that there are reporting requirements that have not been established yet. My past experience with federal auditors in the Medicare Financial realm leads me to beleive that the costs of maintaiing these systems in the future could be more than the penalties we could pay by not cnmverting to EMR. We had an audit and were able to reconcile a $300 million dollar contract to within $5. The auditors insisted that we continue looking until we found the $5. or they told us we could stop searching.

    My point is that we are going to pay a penalty if we do not adopt a system by 2015, but the requirements for 2015 have not been defined to a pint where we are confortable making a decision about how to proceed. Specs must be clearly defines for how thieses systems must perform before you should be able to penalize us for not implementing systems which meet them.

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