As health IT observers and stakeholders have begun to unpack the 1,883-page proposed rule on meaningful use rebranding that the Centers for Medicare & Medicaid Services (CMS) released on Tuesday evening, a few core themes from the regulation are beginning to emerge—including discussion on if the government will be forcing providers to participate in health information exchange activities.
In the rule, CMS is proposing to re-name the meaningful use program, now calling it “promoting interoperability.” But just how far the federal agency will go beyond “promotion” remains to be seen. For instance, deep inside the rule, CMS wrote that it is seeking public comment, via an RFI (request for information) on whether participation in the Trusted Exchange Framework and Common Agreement (TEFCA) should be considered a health IT activity that could count for credit within the health information exchange objective in lieu of reporting on measures for this objective.
Those who have been close to the early meetings on TEFCA—which is the Office of the National Coordinator’s (ONC’s) plan to jolt the sluggish pace of progress on interoperability between providers— have praised the fact that provider participation in the initiative is currently voluntary. But Jeff Smith, vice president of public policy at AMIA (the American Medical Informatics Association), believes that providers might actually be forced to participate after all.
“One of the really interesting things is that nestled away [in the RFI] is that it says CMS may consider revising the current CMS ‘Conditions of Participation’ [which were originally proposed in the IMPACT Act and might be changed for future purposes] for hospitals that would require them to transfer medically necessary information upon a patient discharge or transfer to do so electronically. A few other phrases are [also] in there, such as requiring hospitals to send discharge information to a community provider via electronic means, if possible, and requiring hospitals to make information available to patients, or a specific third-party application via electronic means, if requested,” Smith explains.
And even more thought-provoking, adds Smith, is TEFCA possibly counting as an HIE measure and objective in the new program. “This could be wildly overblown, but one of the critiques of TEFCA is that it is voluntary and if you make it too hard, [no one] will do it. I always thought that was flawed logic, as the ONC EHR [electronic health record] certification program is voluntary, but nobody treats it like it’s voluntary if they want to be part of this world,” he asserts.
As such, Smith always assumed that TEFCA would be “voluntary,” but that the government would figure out a way to encourage participation. “If you think about TEFCA as essentially requiring all these [activities], if they were to try to make Conditions of Participating align with the general outline of TEFCA, that would be a pretty strong motivation to participate. It sure seems to me that what’s outlined here—making information available to other facilities upon transfer or discharge, requiring discharge information go to community providers, and making sure that information is available to patients or third-party apps—is pretty much a large swath of what TEFCA is trying to accomplish,” he says.
Indeed, as noted on Twitter by Farzad Mostashari, M.D., former ONC National Coordinator for Health IT, in the hours following the rule’s release, it is the Conditions of Participation proposal which would aim to ensure interoperability, that seems most significant.
It was the proposal from @SeemaCMS to use hospital Conditions of Participation to ensure interoperability (and pt access) on pg 1475
That would be huge.
Please write in support! pic.twitter.com/D2PmttDYgU
— Farzad Mostashari (@Farzad_MD) April 25, 2018
To this point, Smith points out that CMS is proposing in the rule to “do away with one of the things that hospitals have complained a lot about,” which is the meaningful use patient data access objective (view, download and transmit). However, he notes, “what this RFI [on the possibility of revising Conditions of Participations to revive interoperability] seems to be signaling is that they are not saying it’s not important to allow patients to view, download and transmit their information, but quite the opposite. CMS is signaling that they think it’s more important than participating in this little program that could cost you a percentage point or two in reimbursement. They think it’s so important that you don’t get participate in Medicare [if you don’t meet the Conditions of Participation],” he says.
As Smith further explains, on the one hand, [the government] has tried to be responsive to the complaints and concerns about the burden that providers have discussed relative to view, download and transmit, but on the other hand, “I couldn’t imagine that many hospital executives would trade meaningful use Stage 3 patient data access measures and objectives for the Conditions of Participation. That raises the stakes significantly.”
To this point, CMS Administrator Seema Verma’s tweet indicates that per the proposed revisions to the Conditions of Participation, penalties will indeed be forthcoming for those providers who don’t provide their patients with electronic access to their data.
To avoid a payment penalty, providers will have to provide patients with electronic access to their health information. #MyHealthEData
— Administrator Seema Verma (@SeemaCMS) April 24, 2018
Mari Savickis, vice president of federal affairs at the College of Healthcare Information Management Executives (CHIME), notes that when it comes to interoperability, and how much participation the government might mandate, many of these components—TEFCA, the promoting interoperability proposed rule, and a data blocking rule, which is forthcoming later this year—are all intertwined. “There are lots of moving interoperability pieces, and generally we appreciate with that the government is trying to do, and [for now], it is still voluntarily and not in a punitive manner. But if CMS says that if you don’t participate in TEFCA, that means you are a data blocker—well that would be a big concern of ours,” she says.
A New Scoring System
Beyond removing the view, download and transmit aspect of meaningful use, CMS is also proposing in the rule a major change around how eligible hospitals will be scored in the new program. Previously under meaningful use, participants would be subjected to a pass/fail system, which drew the ire of many folks. But with a new scoring system that will rate responding providers on a 100-point scale, with 50 points needed to avoid Medicare payment adjustments (and qualify for what CMS calls a “meaningful EHR user”), it’s expected that program participants will respond favorably to this aspect of the regulation. What’s more, CMS is proposing to remove 19 measures across value-based purchasing programs and to de-duplicate another 21 measures.
Indeed, in a statement responding the proposed rule, CHIME’s board of trustees chair, Cletis Earle, “While we are still digesting the changes to the scoring methodology, CMS has exercised the flexibility given to them by Congress last year which permits them to remove the ‘pass/fail’ policy—something CHIME has long requested be removed. Adds Savickis, speaking to the change in the scoring methodology, “The agency is now proposing a scoring system that is more akin with what they do with MIPS [the Merit-based Incentive Payment System].”
As far as how the new program compares with meaningful use Stage 3—which eligible hospitals are required to begin no later than 2019—CMS is proposing that existing Stage 3 measures of the EHR Incentive Program will be broken into a smaller set of four objectives and scored based on performance and participation. The smaller set of objectives would include e-prescribing, health information exchange, provider to patient exchange, and public health and clinical data exchange.
Smith agrees with Savickis that the new scoring system is essentially taking a page out of the MIPS playbook. He notes, “The point system that they’ve outlined here seems to be pretty rational, and I would argue getting 50 out of the available maximum points is probably pretty doable.”
Smith adds that the Bipartisan Budget Act of 2018 has allowed CMS to propose policies that are not intrinsically more difficult over time by giving people the ability to submit data on fewer measures and by setting the overall composite score at 50. “So, again, it borrows from the MIPS playbook by recalibrating a composite score and I think this will be largely helpful for those who are worried about the all-or-nothing component of meaningful use,” he says. “How much extra work and headache it’s going to save, well, that is still another question.”