CMS Proposes Rule Regarding the Exchange of Electronic Health Information Which Impacts Hospitals, Clinicians and Government Payors

King & Spalding

On February 11, 2019, CMS issued a proposed rule, to improve access to electronic health information (the Proposed Rule). The Proposed Rule results from the 21st Century Cures Act (the Cures Act), in which CMS and the Office of the National Coordinator for Health Information Technology (ONC) were directed to develop policies to improve interoperability through data sharing and patient access to health information. The Proposed Rule is scheduled to be published in the Federal Register on March 4, 2019, but is available in an unpublished version here.

The Proposed Rule first seeks to require Medicare Advantage organizations, Children’s Health Insurance Program (CHIP) managed care entities, state Medicaid and CHIP Fee-For-Service (FFS) programs and Qualified Health Plans (QHP) (Covered Entities), to make patient claim and encounter data available in a standardized format through an Application Programming Interface (API). In 2018, CMS introduced Blue Button 2.0, an API that enabled Medicare beneficiaries to access their health claims information through an application of their choosing. CMS proposes that the Covered Entities similarly implement openly published APIs in which patient claim and other health information will be made available to patients through third-party applications.  This data includes: adjudicated claims, encounters with capitated providers, and provider remittances, enrollee cost-sharing, and clinical data, including laboratory results. CMS proposes requiring compliance by January 1, 2020, and July 1, 2020, for Medicare Advantage plans and QHP issuers in FFEs, and Medicaid FFS, Medicaid managed care plans and CHIP managed care entities, respectively.

Second, CMS is proposing to require hospitals, (including short-term acute care hospitals, psychiatric hospitals, children’s hospitals, long-term care hospitals, cancer hospitals and rehabilitation hospitals, and Critical Access Hospitals), to send electronic notifications when a patient is admitted, discharged or transferred to other health care facilities or community providers. CMS proposes to limit this requirement to Medicare- and-Medicaid participating hospitals that that have adopted electronic health records systems. CMS seeks to require that hospitals convey the patient’s basic personal or demographic information, as well as the name of the sending institution, and, (if not prohibited by other applicable law), diagnosis.

Third, CMS stressed that Section 4003 of the Cures Act recognized the importance of making provider digital contact information available through a common directory. The Proposed Rule would additionally make publicly available the names and National Provider Identifiers of those providers who have not added digital contact information to their entries in the National Plan and Provider Enumeration System beginning in the second half of 2020.

Fourth, states and CMS additionally routinely exchange data to support the administration of benefits to Medicare-Medicaid dually eligible beneficiaries. The Proposed Rule also seeks to update the regularity with which states are required to exchange “buy-in” and “MMA” data on dually eligible beneficiaries, from a monthly exchange to a daily exchange.

Finally, CMS stressed the need to deter the practice of information blocking—when a vendor unreasonably interferes with or prevents access to electronic health information. CMS seeks to make publicly available a list of clinicians, hospitals and CAHs that have submitted a "no" response to any of the attestation statements regarding the prevention of information blocking in the Quality Payment Program or the Medicare FFS Promoting Interoperability Program.

CMS additionally issued requests for information as part of the Proposed Rule. CMS is seeking public comment regarding: (1) how CMS can utilize its program authority to improve patient identification and safety, and enable better care coordination and interoperability; and (2) how CMS can more broadly incentivize the adoption of interoperable health IT systems and use of interoperable data across settings such as facilities, and those settings serving individuals who are dually eligible for Medicare and Medicaid and/or receiving home and community-based services; and (3) ways in which the CMS Innovation Center may promote interoperability among model participants and other health care providers as part of the design and testing of innovative payment and service delivery models.

Comments on the proposed rule are due by 5 p.m., 60 days after its publication in the Federal Register. All submissions received must refer to file code “CMS-9115-P,” and may be submitted electronically, or by regular or express or overnight mail.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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