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February 12, 2019

HHS wants to stops hospitals from 'blocking' patient data—and they're threatening to punish 'bad actors'

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    HHS on Monday proposed two new rules that aim to give patients greater access to their electronic health information (EHI), require hospitals to send electronic patient alerts, and call out health care providers who impede health data sharing, EHRIntelligence reports.

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    CMS wants hospitals to send electronic admission and discharge alerts—or risk losing Medicare eligibility

    In one of the proposed rules, CMS suggested requiring CAHs, hospitals, and psychiatric hospitals that participate in Medicare to send electronic patient notifications whenever a patient is admitted, discharged, or transferred. CMS said such "notifications are a proven tool for improving transitions of care between settings and improving patient safety," but added that "many hospitals have not developed capabilities to send these notifications to other providers and facilities to whom they transition patients."

    The rule would go into effect in 2020 and providers who don't comply could risk losing their Medicare eligibility. CMS says they don't believe the rule will add additional costs for hospitals, except for a one-time cost of the "initial implementation of the notification system, and to the revision of (any) policies and procedures as they relate to discharge planning." However, the rule would allow hospitals to be exempted if their health systems aren't advanced enough to meet the requirement.

    The American Hospital Administration signaled their initial opposition to the measure. "We believe that CMS already has better levers to ensure the exchange of appropriate health information for patients," they said in a statement.

    CMS seeks to fight "information blocking"

    Further, the proposed rule would allow CMS to publicly report any hospitals or other health care providers found to "participate in 'information blocking' practices that unreasonably limit the availability, disclosure, and use of [EHI]" and "undermine efforts to improve interoperability," HHS said in a release. According to a CMS fact sheet, the agency would publicly report and penalize any clinicians, hospitals, and critical access hospitals (CAHs) that submit a "no" response to any of three attestation statements related to preventing information blocking as stipulated under federal Promoting Interoperability Programs, which are implemented under MACRA's Merit-based Incentive Payment System (MIPS).

    "The days of holding patient data hostage are over," said CMS Administrator Seema Verma in a conference call announcing the measure, "[s]imply put, we’re going to expose the bad actors who are purposely trying to keep patients from their own information." 

    CMS health insurers to give enrollees electronic access to health data

    In another aspect of the proposal, CMS suggested requiring Medicaid, CHIP, Medicare Advantage, and Affordable Care Act exchange insurers to provide enrollees with electronic access to their health information and medical claims by 2020. The proposed rule also would require affected insurers, as well as health care providers, to use open data sharing technologies to support patients as they move between different health plans. In addition, the proposed rule would require affected health plans to use application programming interfaces [APIs] to make it easier for enrollees, prospective enrollees, and health care providers to access to data on the plans' provider networks.

    Verma said the proposed rule could bolster 125 million patients' access to their medical claims and EHI.

    CMS also proposed updating the frequency at which states are required to exchange certain data on individuals dually enrolled in Medicare and Medicaid with the federal government. Currently, states are required to exchange such information with the federal government on a monthly basis. Under the proposed rule, that frequency would change to daily.

    In addition, CMS under the proposed rule would publicly report health care providers that have not added digital contact information to their entries in the National Plan and Provider Enumeration System. CMS would begin such reporting during the second half of 2020.

    CMS in the proposed rule also issued two Requests for Information that seek public comments on health IT adoption and interoperability in post-acute care settings, as well as how to improve patient matching and identification.

    CMS said it will accept public comments on the proposed rule through early April.

    ONC seeks to bolster EHI access on mobile devices

    The Office of the National Coordinator for Health IT (ONC) issued the second proposed rule, which would require certain entities in the health care industry to adopt standardized APIs to help developers give individuals easier and more secure access to their EHI via smartphones and other mobile devices. The proposed rule also would require health care providers to allow patients to access their EHI electronically at no cost to them.

    In addition, the proposed rule would implement certain data blocking restrictions called for under the 21st Century Cures Act. The proposed rule also includes seven activities that would be deemed as necessary and reasonable and would not qualify as information blocking. For example, the proposed rule would create an exception in instances when sharing data would constitute an unreasonable burden, or when it would violate health privacy requirements.

    The proposed rule also seeks public comments on what types of pricing information should be included in patients' EHI to help consumers better understand how much they are paying for health care services.

    Proposed rules seek to align data requirements across the health care industry

    HHS said the proposed rules also seek to align certain interoperability and data requirements for stakeholders across the health care industry, including health care providers, payers, and IT developers.

    For example, HHS said CMS' proposed rule would require affected entities to "conform to the same advanced API standards as those proposed for certified health IT in the ONC proposed rule." In addition, the proposed rules include "an aligned set of content and vocabulary standards for clinical data classes through the United States Core Data for Interoperability standard," HHS said.


    HHS Secretary Alex Azar in a release said, "These proposed rules strive to bring the nation's health care system one step closer to a point where patients and clinicians have the access they need to all of a patient's health information, helping them in making better choices about care and treatment." He continued, "These steps forward for health IT are essential to building a health care system that pays for value rather than procedures, especially through empowering patients as consumers."

    Health IT Now—a coalition of vendors and employer, patient, and provider groups—applauded HHS for targeting information blocking. Joel White, Health IT Now's executive director, in a statement said, "Congress doled out nearly $40 billion to ensure patient information could be shared and used to improve care. … Yet we never ensured bad actors weren't blocking information."

    According to Modern Healthcare, some industry groups praised HHS for its proposed exceptions to information blocking restrictions.

    In addition, the American Health Information Management Association said it is "pleased that CMS' proposed rule includes a request for information on leveraging CMS' authority to improve patient identification," Modern Healthcare reports (Murphy, EHRIntelligence, 2/11; HHS release, 2/11; CMS fact sheet, 2/8; ONC website, updated 2/11; Wilde Mathews, Wall Street Journal, 2/11; King, Modern Healthcare, 2/11; Frieden, MedPage Today, 2/11).

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