Federal agencies in March 2020 finalized two new, interrelated rules that are aimed at enhancing the interoperability and compatibility across systems of patient electronic health information (”EHI”): the Centers for Medicare and Medicaid Services’ (“CMS”) Interoperability and Patient Access final rule (CMS-9115-F) and the HHS Office of the National Coordinator for Health Information Technology’s (“ONC”) 21st Century Cures Act final rule (RIN 0955-AA01). ONC’s rule seeks to “advance interoperability and support the access, exchange, and use of electronic health information.” (RIN 0955-AA01 at 1.) CMS’ goal is to assist patients and providers access health information across different systems, so that patients may “move from payer to payer, provider to provider, and have both their clinical and administrative information travel with them throughout their journey.” (CMS-9115-F at 8.)
Among other provisions, the new CMS rule amends Medicare CoPs for hospitals to require hospitals to demonstrate that their electronic medical system or other electronic administrative system can be used to send notifications (that include at least the patient’s name, treating practitioner’s name, and sending institution’s name) to or through an intermediary when a patient is admitted to, discharged from, or transferred from the hospital’s emergency department or inpatient services (shortened to the “ADT” provision). The hospital must be able to send these notifications to all applicable post-acute care services providers and suppliers, as well as other specified practitioners and entities, such as the patient’s primary care practitioner. While this new interoperability requirement takes effect 6 months after publication of the CMS final rule, as of April 9, 2020, the final rule has not yet been published in the Federal Register.
Similarly, among other provisions, the new ONC rule amends the health IT developers’ Condition of Certification to prohibit these developers from information blocking and to require them to test health IT for interoperability in the settings the technology would be marketed for. Information blocking is understood to be practices “that unreasonably limit the availability and use of electronic health information (EHI) for authorized and permitted purposes.” (RIN 0955-AA01 at 576.) ONC noted research concluding that information blocking was harmful “by limiting patient mobility, encouraging consolidation, and creating barriers to entry for developers of new and innovative applications and technologies that enable more effective uses of clinical data to improve population health and the patient experience.” (RIN 0955-AA01 at 578.) However, the new ONC rule delineates activities undertaken by providers, developers, and others that are exceptions to prohibited information blocking conduct.
Additionally, under the new CMS rule, CMS will begin including an indicator on “Physician Compare” for eligible clinicians and groups that submit a “no” response to any of the three prevention of information blocking statements for MIPS. Additionally, CMS will begin including information of hospitals, attesting under the Medicare FFS Promoting Interoperability Program, which had submitted a “no” response to any of the three attestation statements related to the prevention of information blocking. The goal of these indicators is to help patients choose providers who are more likely to support electronic access of their health information.
Finally, CMS will publicly report the names and NPIs of providers who do not have digital contact information included in the National Plan and Provider Enumeration System (NPPES) system beginning in the second half of 2020. CMS believes such public reporting would encourage providers to include digital contact information.
The COVID-19 pandemic has led to CMS rethinking the timeline for implementation, but sooner or later, interoperability will become a standard requirement for Medicare or Medicaid providers.