October 20, 2021

Volume XI, Number 293


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Dealing with Disasters – Quality Payment Program Exception Available for MIPS-Participating Clinicians and Groups

The Centers for Medicare & Medicaid Services (CMS) simplified the process for clinicians and other providers to seek the Quality Payment Program (QPP) Hardship exception by releasing an online application on Aug. 2.

This process allows clinicians and other providers that bill under the Medicare Physician Fee Schedule to seek relief from electronic health record reporting requirements under the Merit-based Incentive Payment System (MIPS), if they have experienced a “qualifying hardship.” Individuals and entities that are MIPS Eligible Clinicians (i.e., are required to report data under MIPS) whose certified electronic health record technology (CEHRT) systems were unavailable or damaged for all or a portion of 2017 (including due to recent natural disasters) may want to consider applying for this exception.

The Hardship Exception Waives the MIPS Advancing Care Information Category

Physicians and certain other clinicians must participate in MIPS – created by the Medicare Access and CHIP Reauthorization Act (MACRA) – unless an “exclusion” applies. MIPS Eligible Clinicians are eligible for negative or positive performance-based payment adjustments to their Medicare Physician Fee Schedule payments, based on a MIPS score calculated using certain performance measures. For 2017, the Advancing Care Information (ACI) performance category accounts for 25 percent of the total MIPS score, which is then compared to benchmarks and ultimately applied in a manner that reduces or increases the Eligible Clinician’s Medicare payment.

CEHRT is required for participation in the ACI category, so Eligible Clinicians who experienced problems with their CEHRT systems in 2017 may fail to meet the requirements of the ACI category, which could result in a lowered MIPS score.

Where the failure was due to certain circumstances outside the control of clinicians or groups, an individual MIPS Eligible Clinician (or group of MIPS Eligible Clinicians) may submit a QPP Hardship Exception application, citing one of the following reasons for review and approval:

  • Insufficient Internet Connectivity – located in an area without sufficient Internet access to comply with the ACI objective requiring internet connectivity, and faced insurmountable barriers to obtaining such internet connectivity
  • Extreme and Uncontrollable Circumstances – extreme and uncontrollable circumstances in the form of (a) a natural disaster in which the EHR system was damaged or destroyed; (b) a practice or hospital closure; or (c) severe financial distress resulting in bankruptcy or debt restructuring 
  • Lack of Control over the availability of CEHRT – CEHRT was unavailable in one or more practice locations where more than 50 percent of the patient encounters occurred

If CMS approves the hardship exception, the ACI category is reduced from 25 percent to 0 percent, and the weight of the Quality category increases from 60 percent to 85 percent. This means that 85 percent of the MIPS score will be based on the Quality performance category.

How to Apply for the QPP Hardship Exception

A hardship exception can be submitted via the online application or by calling the QPP Service Center at 866-288-8292. Applications require several items of information, including:

  • Taxpayer Identification Number (TIN) for group applications
  • National Provider Identifier (NPI) for individual applications
  • Contact information of individual submitting application

Distinguishing the Hardship Exception from Special Status Designation

The hardship exception is distinct from the CMS “Special Status” rules that also exempt some MIPS Eligible Clinicians from reporting obligations. The ACI category score for Special Status clinicians is automatically reweighted for the following types of clinicians:

  • Hospital-based MIPS-eligible clinicians
  • Physician assistants
  • Nurse practitioners
  • Clinical nurse specialists
  • Certified registered nurse anesthetists
  • Non-patient facing clinicians

Where reporting as a group, the group’s ACI score is automatically reweighted if all of the group’s MIPS Eligible Clinicians receive a hardship exception or fall into a Special Status category, or if the group is “non-patient facing” – meaning more than 75 percent of its clinicians have 100 or fewer patient-facing encounters

Final Thoughts

CMS has acknowledged the devastating impacts of Hurricanes Harvey and Irma, and noted it will continue to monitor how weather events are affecting health care providers. The agency has established a website that offers updates on efforts to address those impacts. CMS has also stated that it will be making QPP exception decisions regarding the effects of Hurricanes Harvey and Irma in the near future.

Clinicians and groups should carefully consider whether they qualify for a hardship exception. Given the effects of recent natural disasters, many Eligible Clinicians will likely wish to seek a hardship exception under MIPS for 2017 to avoid possible downward adjustments to Medicare payment.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume VII, Number 264

About this Author

Bruce Johnson, Health Care Organization Attorney, Polsinelli Law FIrm

Bruce Johnson assists clients with a strategic, forward-thinking and pragmatic approach. He brings more than 25 years of legal and management consulting experience to his health care organization clients. Bruce assists hospitals, medical groups, academic practice plans and other health care enterprises in crafting effective relationships to promote business objectives while taking into account strategic, compensation, business operations, compliance, and other issues in today’s changing payment and delivery environments.

Cybil G. Roehrenbeck, Polsinelli PC, Precision Medicine Lawyer, Genomics Attorney

Focusing on emerging health care sectors, Cybil Roehrenbeck is dedicated to helping clients achieve their objectives by employing a comprehensive, interdisciplinary approach to their legal and business challenges. She counsels clients on federal legislative and regulatory opportunities in the following areas:

  • Health information technology  

  • mHealth and telehealth

  • Precision medicine and genomics

  • Innovative health care delivery...

Gabriel Scott, Polsinelli Law Firm, Raleigh, Health Care Law Attorney

Gabriel Scott has a deep understanding of the evolving health care regulatory environment and the changes occurring at both the national and state levels. Prior to joining Polsinelli, Gabriel spent several years in federal civil service and the private industry. His experience, with both payor and provider sides, allows him to offer a unique perspective to clients’ regulatory and transactional challenges. Gabriel previously worked at the Centers for Medicare and Medicaid Services (CMS), first in the Center for Medicare & Medicaid Innovation (CMMI) and later in the...

Neal Shah, Polsinelli Law Firm, Healthcare Law Attorney

Neal Shah applies his experience in government, private practice, and health care delivery to help identify practical legal solutions to complex regulatory and transactional problems, including:

  • Helping clients comply with the Stark Law, Anti-Kickback Statute, and similar federal and state fraud and abuse laws
  • Establishing and operating Accountable Care Organizations and other coordinated care arrangements
  • Completing self-disclosures of over payments of fraud and abuse liability, including through the CMS Voluntary Self-Referral Disclosure Protocol (SRDP) and...