Might CMS Move to Implicitly Mandate Health Data Exchange at Discharge, at the Federal Level?

April 26, 2018
Embedded in the release of a new proposed rule around what has been known as the meaningful use program, CMS officials have indicated the possibility that they might mandate electronic sharing of discharge data at the point of discharge

Tuesday’s announcement on the part of the federal Centers for Medicare and Medicaid Services (CMS) that the agency is planning to drastically overhaul the meaningful use program, even to the extent of changing its name, was a big one. As Healthcare Informatics Managing Editor Rajiv Leventhal noted in his report two days ago, “In a press release, the federal agency said that it will be proposing to re-name the meaningful use program to ‘Promoting Interoperability.’ CMS said the goals of the new program will be to: make it more flexible and less burdensome; emphasize measures that require the exchange of health information between providers and patients, and incentivize providers to make it easier for patients to obtain their medical records electronically.”

Further, Leventhal noted, “The meaningful use (Medicare and Medicaid EHR Incentive Programs) program has been around since 2011 with the intent to encourage eligible providers to demonstrate meaningful use of certified EHR (electronic health record) technology. Seven years later, with nearly all hospitals and most physician practices having implemented a certified EHR, CMS is proposing a shakeup of the initiative with a rethinking of industry priorities.  Broadly,” he wrote, “the proposed rule issued today proposes updates to Medicare payment policies and rates under the Inpatient Prospective Payment System (IPPS) and the Long-Term Care Hospital (LTCH) Prospective Payment System (PPS). According to CMS, the policies in the IPPS and LTCH PPS proposed rule ‘would further advance the agency’s priority of creating a patient-driven healthcare system by achieving greater price transparency and interoperability—essential components of value-based care— while also significantly reducing the burden for hospitals so they can operate with better flexibility and patients have the information they need to become active healthcare consumers.’”

Among other things, Leventhal wrote, “The proposed policies begin implementing core pieces of the government-wide MyHealthEData initiative through several steps to strengthen interoperability or the sharing of healthcare data between providers.” And his report included the statement made by CMS Administrator Seema Verma that was contained in the announcement. “We seek to ensure the healthcare system puts patients first,” Verma a statement. “Today’s proposed rule demonstrates our commitment to patient access to high quality care while removing outdated and redundant regulations on providers. We envision a system that rewards value over volume and where patients reap the benefits through more choices and better health outcomes. Secretary Azar has made such a value-based transformation in our healthcare system a top priority for HHS, and CMS is taking important, concrete steps toward achieving it.”

What’s more, as Leventhal and Healthcare Informatics Associate Editor Heather Landi reported this morning in their follow-up article, “CMS is proposing to re-name the meaningful use program, now calling it “promoting interoperability.” But just how far the federal agency will go beyond “promotion” remains to be seen. For instance, deep inside the rule, CMS wrote that it is seeking public comment, via an RFI (request for information) on whether participation in the Trusted Exchange Framework and Common Agreement (TEFCA) should be considered a health IT activity that could count for credit within the health information exchange objective in lieu of reporting on measures for this objective.”

Their story notes that “Those who have been close to the early meetings on TEFCA—which is the Office of the National Coordinator’s (ONC’s) plan to jolt the sluggish pace of progress on interoperability between providers— have praised the fact that provider participation in the initiative is currently voluntary. But,” they note in their article from this morning, “Jeff Smith, vice president of public policy at AMIA (the American Medical Informatics Association), believes that providers might actually be forced to participate after all.” Indeed, Smith told them, “One of the really interesting things is that nestled away [in the RFI] is that it says CMS may consider revising the current CMS ‘Conditions of Participation’ [which were originally proposed in the IMPACT Act and might be changed for future purposes] for hospitals that would require them to transfer medically necessary information upon a patient discharge or transfer to do so electronically. A few other phrases are [also] in there, such as requiring hospitals to send discharge information to a community provider via electronic means, if possible, and requiring hospitals to make information available to patients, or a specific third-party application via electronic means, if requested.”

Further, they report, “[E]ven more thought-provoking, adds Smith, is TEFCA possibly counting as an HIE measure and objective in the new program.” In fact, he told them, “This could be wildly overblown, but one of the critiques of TEFCA is that it is voluntary and if you make it too hard, [no one] will do it. I always thought that was flawed logic, as the ONC EHR [electronic health record] certification program is voluntary, but nobody treats it like it’s voluntary if they want to be part of this world.”

And, though Smith told them that he had always assumed that TEFCA participation would be “voluntary,” the government would figure out a way to encourage participation. “If you think about TEFCA as essentially requiring all these [activities], if they were to try to make Conditions of Participating align with the general outline of TEFCA, that would be a pretty strong motivation to participate. It sure seems to me that what’s outlined here—making information available to other facilities upon transfer or discharge, requiring discharge information go to community providers, and making sure that information is available to patients or third-party apps—is pretty much a large swath of what TEFCA is trying to accomplish,” he said.

Using the modifications to the IMPACT Act to compel data exchange?

So, now comes a question: might CMS officials end up, down the road, creating an implicit mandate for inpatient hospitals to participate in de facto health information exchange in routine discharges from inpatient stays, as a condition of participation in the Medicare and Medicaid programs, via modifications made to the IMPACT Act, above and beyond potentially giving providers “credit” for such data-sharing at the point of discharge, as part of the renamed “Promoting Interoperability” program? The question is a provocative one, but we’ll have to do some digging and pondering here.

It’s right there, on pages 1474-1477 of the proposed rule:

“In light of the widespread adoption of EHRs along with the increasing availability of health information exchange infrastructure predominantly among hospitals, we are interested in hearing from stakeholders on how we could use the CMS health and safety standards that are required for providers and suppliers participating in the Medicare and Medicaid programs (that is, the Conditions of Participation (CoPs) Conditions for Coverage (CfCs), and Requirements for Participation (RfPs) for Long Term Care Facilities) to further advance electronic exchange of information that supports safe, effective transitions of care between hospitals and community providers.  Specifically, CMS might consider revisions to the current CMS CoPs for hospitals such as: requiring that hospitals transferring medically necessary information to another facility upon a patient transfer or discharge do so electronically; requiring that hospitals electronically send required discharge information to a community provider via electronic means if  possible and if a community provider can be identified; and requiring that hospitals make  certain information available to patients or a specified third-party application (for example, required discharge instructions) via electronic means if requested.

On November 3, 2015, we published a proposed rule (80 FR 68126) to implement the provisions of the IMPACT Act and to revise the discharge planning CoP requirements that hospitals (including short-term acute care hospitals, long-term care hospitals (LTCHs), inpatient rehabilitation hospitals (IRFs), inpatient psychiatric hospitals (IPFs), children’s hospitals, and cancer hospitals), critical access hospitals (CAHs), and home health agencies (HHAs) must meet in order to participate in the Medicare and Medicaid programs.  This proposed rule has not been finalized yet. However, several of the proposed requirements directly address the issue of communication between providers and between providers and patients, as well as the issue of interoperability:

  • Hospitals and CAHs would be required to transfer certain necessary medical information and a copy of the discharge instructions and discharge summary to the patient’s practitioner, if the practitioner is known and has been clearly identified;
  • Hospitals and CAHs would be required to send certain necessary medical information to the receiving facility/post-acute care providers, at the time of discharge; and
  • Hospitals, CAHs and HHAs, would need to comply with the IMPACT Act requirements that would require hospitals, CAHs, and certain post-acute care providers to use data on quality measures and data on resource use measures to assist patients during the discharge planning process, while taking into account the patient’s goals of care and treatment preferences.

We published another proposed rule (81 FR 39448), on June 16, 2016, that updated a number of CoP requirements that hospitals and CAHs must meet in order to participate in the Medicare and Medicaid programs. This proposed rule has not been finalized yet.  One of the proposed hospital CoP revisions in that rule directly addresses the issues of communication between providers and patients, patient access to their medical records, and interoperability.  We proposed that patients have the right to access their medical records, upon an oral or written request, in the form and format requested by such patients, if it is readily producible in such form and format (including in an electronic form or format when such medical records are maintained electronically); or, if not, in a readable hard copy form or such other form and format as agreed to by the facility and the individual, including current medical records, within a reasonable timeframe.  The hospital must not frustrate the legitimate efforts of individuals to gain access to their own medical records and must actively seek to meet these requests as quickly as its record keeping system permits.”

Now, there are alternative ways of reading this. The most passive reading would be a kind of “blue-sky” reading: that senior CMS officials see some future opportunity to make changes to the IMPACT Act that would promote “Promoting Interoperability,” and those officials want to let everyone know that they’re “blue-sky”-ing that thought right now.

But really, that would be a rather Pollyanna-ish view, to be honest. After all, those officials went to the trouble of spilling three pages of (electronic) ink on the idea, in the proposed rule modifying what has been meaningful use, on Tuesday morning. Which means they’re very actively thinking about it.

So my interpretation, as of this moment, is that Seema Verma and her fellow senior CMS officials this week have signaled to hospital senior executives and other leaders that actively sharing key data with the appropriate post-acute-care providers at the point of discharge from inpatient stays, may come to be mandated, in effect, either through explicit changes to what had been called the Meaningful Use program and is now called the Promoting Interoperability program, or, more likely based on the text I’ve shared above from the new proposed rule, instead through rulemaking in the IMPACT Program. Certainly, all of this is supported by all the comments that senior federal healthcare officials have been making in recent months, and certainly is supported by the comments that Administrator Verma made in March at HIMSS18 in Las Vegas, when she announced the creation of the MyHealthEData initiative. So all of it hangs together conceptually, as well as, potentially, policy-wise.

And while all of this is “envisioned” right now in late April 2018, things that are “envisioned” by CMS officials often become concrete requirements quite soon. So, stay tuned—all of this is about to get even more interesting, sooner rather than later.

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