What You Need to Know About Proposed Federal EHR Rules

The U.S. Department of Health and Human Services recently released two proposed rules as part of its ongoing effort to enhance patient care with improved access to health information. The rules, issued by the Centers for Medicare & Medicaid Services (CMS) and the Office of the National Coordinator for Health Information Technology (ONC), focus on reducing barriers to the interoperability of electronic health information (EHI) in support of ongoing administration and congressional policy initiatives.

The CMS Proposed Rule

The proposed rule supports CMS’ MyHealthEData initiative, which aims to improve patient access to medical information and electronic data exchange throughout the healthcare system. The rule plans to accomplish these goals through a variety of methods, including:

• Required Application Programming Interfaces (APIs):

  CMS proposes to require certain covered health plans and programs to make patient claims and other health information available to authorized users through APIs based on industry-recognized standards.

• Health Information Exchange Across Payers:

  Under this proposal, certain health plans will be required to support the electronic exchange of data in the event that a patient chooses to move to another plan. This includes information about diagnoses, procedures, tests, and providers seen by the patient. CMS expects this proposal to improve care coordination and eliminate redundant procedures and testing, reducing waste and burdens on clinicians.

• Public Reporting of Information Blockers:

  In the hopes that public shaming will incentivize healthcare providers to refrain from information blocking, CMS proposes to publicly report all negative responses to information blocking attestations under MIPS interoperability programs.

• Provider Digital Contact Information:

  As part of the 21^st Century Cures Act, congress mandated the creation of a provider digital contact information index. CMS has updated the National Plan and Provider Enumeration System (NPPES) to be able to capture secure digital contact information for individual clinicians and facilities. To make sure providers add their digital contact information, CMS proposes to publicly report the names and NPIs of providers who have not added their contact information to the NPPES beginning mid-2020.

The CMS proposed rule also includes other provisions, such as requiring API access to provider network directory data, increasing the frequency of federal-state data exchange on dually-eligible beneficiaries, and revising the hospital conditions of participation to require electronic notifications for other facilities and community providers when a patient is admitted, discharged, or transferred—when capable of doing so.

Additional information about the main provisions of the proposed rule is available in this fact sheet from CMS. View the proposed rule in its entirety here.

The ONC Proposed Rule

The ONC proposed rule works in tandem with the CMS proposed rule to promote secure and immediate access to EHI. Most notably, the rule implements the 21^st Century Cures Act’s prohibition on information blocking. The rule proposes to implement this prohibition by defining seven “exceptions” that are not considered to be information blocking if certain conditions are met. These exceptions include:

• Practices that are reasonable and necessary to prevent physical harm to a patient or another person
• Practices that protect the privacy of EHI
• Practices that promote the security of EHI
• Recovering costs reasonably incurred in providing access, exchange, or use of EHI
• Declining to provide access, exchange, or use of EHI in response to a request that is infeasible
• Licensing technologies or other interoperability elements that are necessary to enable access to EHI so long as the license is offered on reasonable and non-discriminatory terms
• Making health IT temporarily unavailable in order to perform maintenance or improvements to the Health IT

Beyond the information blocking provisions, the ONC Proposed Rule also includes additional proposals to enable users to access and share EHI at no cost. These proposals include:

• API Standards:

  The rule revises meaningful use certification criteria to require the healthcare industry to adopt APIs based on industry-recognized standards (consistent with the CMS proposed rule). The rule also places some restrictions on API-related fees. These provisions are intended to help patients access structured and unstructured EHI formats using smartphones and other mobile devices.

• Exporting EHI:

  The rule proposes a new certification criterion to permit the export of EHI in computable, electronic format. Under this requirement, the data host must be able to export patient EHI when an individual or provider chooses to migrate to another health IT system.

ONC fact sheets about the proposed rule are available here. View the ONC proposed rule in its entirety here.

What Does it Mean for Practices?

When combined, the two proposed EHR rules have the potential to change the healthcare landscape, enabling highly accessible and sharable EHI by 2020.

Many of the provisions do not directly require action on behalf of practices, but they are likely to have a noticeable impact on operations as patient information becomes more readily available to physicians during treatment. Other provisions, such as those pertaining to the public naming of information blockers and clinicians who have not provided their digital contact information, may require more direct and immediate action.

Many practices may also benefit from the provision requiring hospitals to send admission, transfer, and discharge notifications, which would allow physicians to appropriately follow-up with patients who have been to the hospital. We encourage physicians and their practices to continue to check our blog for updates on these proposals. Members with specific questions can reach out for additional assistance by emailing sam.cohen@mmicnc.com.

For physicians and practices that may be interested, comments on the proposed rules can be submitted until May 3, 2019.

Disclaimer: This post is written in general terms and is not a substitute for legal advice or intended to create an attorney-client relationship.