Proposed CMS Interoperability Rule Draws Mixed Reactions

Posted June 29, 2018

A proposed rule by the Centers for Medicare & Medicaid Services (CMS) that would tie interoperability—in terms of the electronic exchange of information—to funding for Medicare and Medicaid has received a mixed reaction from industry groups with some applauding the addition of data-sharing requirements and others concerned that such requirements would be burdensome and premature.

Achieving interoperability is not a new goal for CMS. The agency has rewarded healthcare providers for years with programs such as “Meaningful Use.” However, the proposed updates to Medicare payment policies and rates under the Inpatient Prospective Payment System and the Long-Term Care Hospital Prospective Payment System released in April marked the first time CMS has hinted at potential punitive measures.

In its proposed rule, CMS suggested that it may consider revising its Conditions of Participation (CoPs), with the possibility of requiring providers to electronically transfer medically necessary information upon a patient discharge or transfer and requiring hospitals to “make certain information available to patients or a specified third-party application.”

A Need to Utilize ‘All Available Levers’

Proponents of this change include more than 50 organizations, representing insurance companies, healthcare providers, patient groups, accountable care organizations, and health IT companies, that signed a letter addressed to CMS Administrator Seema Verma.

These groups, which include Beth Israel Deaconess Care Organization, the Biden Cancer Initiative, Blue Shield of California, Intel, the National Association of Accountable Care Organizations, and the New York eHealth Collaborative, “believe that tying information sharing to Conditions of Participation would be a tremendous benefit to millions of Medicare and Medicaid patients across the country,” saying “it represents an important first step in forcing change to a system that has been too slow to evolve in a way that puts the needs of patients first.”

They also urged CMS to use other policy levers to drive data sharing and interoperability by requiring the use of 2015 edition certified electronic health records (EHRs) and aligning the requirements in the Quality Payment Program, the Promoting Interoperability program (currently known as Meaningful Use), and STAR ratings.

The Healthcare Information and Management Systems Society (HIMSS) also supported the idea of exploring “all available policy levers to promote interoperability,” including revisions to the agency’s CoPs, Conditions for Coverage (CfCs), and other participation requirements, as long as the process “moves forward in alignment and coordination with other public policy initiatives focused on facilitating greater data exchange.”

“HIMSS is not supportive of duplicative or onerous regulation on providers and believes that any CoPs and CfCs on facilitating data exchange must work in combination with these other oversight mechanisms,” Harold F. Wolf III, HIMSS president and CEO, and Denise W. Hines, chair of HIMSS North America Board of Directors, wrote in response to the docket.

A Call to Address ‘Root Issues’

Several industry group expressed concern over the potential new requirements. In its comments, the American Hospital Association (AHA) said it “strongly opposes creating additional CoPs/CfCs to promote interoperability of health information” partly because “post-acute care providers were not provided the resources or incentives to adopt health IT and creating this requirement would put another unfunded mandate on these organizations.”

“It is premature for CMS to consider imposing COPs/CfCs until the barriers to [data] exchange have been addressed and all of those affected by the requirements can, in fact, achieve compliance,” the AHA wrote. “Instead, the AHA urges CMS to focus its attention on resolving problems created by the lack of a fully implemented exchange framework, adoption of common standards and incentives for EHR and other IT vendors to adhere to standards.”

The College of Health Information Management Executives (CHIME) was also opposed to building interoperability into CoPs, emphasizing in a letter to CMS that “a distinction must be drawn between speeding and increasing data exchange among providers and achieving a true state of interoperability.”

“Simply imposing regulatory requirements that make electronic data exchange a condition for providers to receive Medicare payment does not address the root issues at play. Addressing ongoing barriers is needed to speed greater progress around interoperability,” CHIME wrote. “If the desired goal is to truly achieve a more interoperable health system, we fail to see how using the Medicare CoP could achieve this in the absence of addressing these barriers.”

The EHR Association had similar sentiments, noting in its comments that it “question[s] the utility of new Conditions of Participation for Medicare around data sharing,” adding that “it seems likely that evaluation and auditing of these items would generate additional hospital burden.”

A final rule is expected to be published this fall.