Executive Session: The road ahead for interoperability, patient data and EHR improvements

Podcast - February 25, 2020

Electronic Health Records

HIT Regulations

Health Information Technology

Federal Compliance

David N. Gans MSHA, FACMPE, SENIOR FELLOW

More than 10 years after then-President Barack Obama signed into law the Health Information Technology for Economic and Clinical Health (HITECH) Act, the result has been the wide-spread adoption of EHRs in medical group practices. However, the promise of true interoperability-the cost-effective, seamless, and secure exchange of patient data, remains elusive. As a new set of regulations is expected from the federal government shortly, concerns remain that these requirements will not alleviate the current health IT challenges, but rather add new administrative costs and burdens for practices.

In this month’s Executive Session podcast, I had the pleasure of speaking with Robert M. Tennant, MA, director, health information technology policy, MGMA Government Affairs, about health IT regulatory issues and policy on the eve of final rules from the Centers for Medicare & Medicaid Services (CMS) and the Office of the National Coordinator for Health IT (ONC) regarding interoperability of EHRs and the flow of electronic health information (EHI) from EHR systems to patient apps.

As Tennant notes, these new rules are expected shortly after the government issued on February 21 a new 73-page report — Strategy on Reducing Regulatory and Administrative Burden Relating to the Use of Health IT and EHRs — detailing the burdens associated with health IT and offering a wide array of recommendations to address those burdens. “Our role at MGMA, of course, is to give the government as much information as we can related to the real world of medical practice and how health IT can both help and hinder the care delivery system,” Tennant noted.

Tennant noted that the feedback loop with MGMA members and physician practices across the country has helped the Association provide meaningful feedback on evolving federal rulemaking and policy setting, especially in the health IT space in the time since the 2004 State of the Union address by then-President George W. Bush, calling for a transition to computerized records. At the time, that call “was a bit like the moon shot that John Kennedy called for, calling on the nation’s practices and hospitals to move to EHRs within 10 years” Tennant recalled. The financial incentives tied to that policy push helped the industry to largely meet the major goals of the legislation.

HITECH, however, outlined a set of requirements for a physician to access incentive dollars, such as:

  1. Use of a certified EHR system
  2. The ability to e-prescribe medications
  3. The ability to report quality measures to the government.
  4. The ability to electronically exchange health information.
Built from those broad legislative mandates, the Meaningful Use EHR Incentive Program, added significant and complex reporting requirements that gave EHR vendors a clear path for building out their software However, the end results for EHR users was less than ideal.” Based on feedback from MGMA members, Tennant noted the government “missed the mark on many occasions with a program that was focused far too much on reporting quality measures, and not at all on things like clinician usability.”

“We got huge increases in the number of practices and hospitals adopting the technology, but the technology really didn't do what it was intended to do, which was really to be able to share patient data easily and effectively,” Tennant added.

Looking at 21st Century Cures

The 21st Century Cures Act, passed in 2016 with bipartisan support, was an attempt to try to address some of the missing elements of HITECH.

Outside the effects it has on federal medication policy, Title IV of the legislation specifically addresses improving delivery of healthcare and calls on EHRs to be “more transparent in terms of usability, security and functionality,” Tennant said.

Interoperability of data across platforms through a newly created entity, the Trusted Exchange Framework and Common Agreement (TEFCA), became the game plan for seamlessly moving records from place to place. At the same time, the Cures Act prohibited information blocking by either providers or EHR vendors, called on HHS to institute real world testing, and required public reporting of the results.

One key aspect of Cures was that it called upon the Government Accountability Office (GAO) to do a study on patient matching after decades of HHS being prohibited from working on the issue of a national patient identifier. Tennant noted that MGMA has advocated for movement on this issue to improve accuracy in care settings. “If a patient presents and the physician receives a record, if it's not accurately matched, they could take clinical action based on inaccurate data.

“Practices can’t rely on outside data unless they are confident that that the they're being matched accurately to the patient,” Tennant added.

The provisions of the Cures Act must be implemented through regulation. CMS and ONC took the first step in that process when they simultaneously released proposed rules in 2019.   Tennant spelled out several concerns that MGMA has with these proposals and hopes they will be addressed in the final rules:
  • Balancing the needs of patients to access their data with the security and privacy of that information. While patients should be able to get their health data on their own app, there could be problems. “How many times when you've downloaded an app to your own phone, have you actually read the terms and conditions before you hit ‘I accept’? The answer is probably never,” Tennant cautioned. Third-party apps — most likely not covered by HIPAA — potentially could take patient data and sell it.
  • Controlling the cost of new EHR features. The ability for EHRs to transfer patient data to third-party apps, among other new elements of certification, could result in software companies passing those development costs along to clients. Now that incentive money under the Quality Payment Program for use of certified EHRs is significantly lower than it was under Meaningful Use, “that’s not going to cover the expected costs of these upgrades,” Tennant said. “We want to make sure that there's a little more flexibility that will allow a practice to either decide to upgrade their technology or not depending on their financial situation and still be able to participate in the government’s quality reporting programs.”
  • Decide what fees are “reasonable.” While the government says that vendors can only charge “reasonable” fees for offering required new functionalities such as application programming interface capability — the ability to share data via apps — Tennant said that MGMA wants to get more clarity about that word. “What's reasonable to a practice may be different than what is reasonable to a vendor,” Tennant noted. He also noted that some vendors might roll this functionality into new versions of software to get around the “reasonable” provision. “They may say, ‘the interoperability is free, but in order to get it you'll need to buy version 4.5, and that'll be $50,000.’”
  • Streamline the rules of information blocking. Tennant noted that the Cures Act went out of its way to try to prevent the blocking of information, but the seven exceptions included in the ONC proposed rule are very complicated and require “a lot of administrative burden” to prove to the government that one of the exceptions applied if you are unable to share information. “We're calling on the government to streamline that reporting process and make it a little bit easier for the practice to deal with an exception,” Tennant said.
  • Defining “electronic health information.” Key to understanding information blocking rules includes how to define electronic health information (EHI). Currently, EHI is understood as everything in the EHR; however, the proposed rule would include past, present and future payment as EHI, as well. Logistically, providing years upon years of claims and payment data would be a significant administrative burden and likely not give much value to patients. Tennant noted that MGMA has called on the government to use the U.S. Core Date for Interoperability (USCDI) standardized elements as the floor for defining EHI relating to the information blocking rule.

Despite these concerns, there are positive signs on the horizon beyond the potential of improving patient access to their own data, Tennant said. The Office for Civil Rights has issued guidance to practices, essentially telling them that they will be held harmless if there is a problem after they move the data to the patient's app. “If the patient gets that information, and then later that app sells it and there's a problem, the practice would not be held liable for that,” Tennant said.

Additionally, the CMS proposed rule include a requirement for hospitals to make admit/discharge/transfer (ADT) information on patients available to primary care physicians or physicians designated by a patient.

For providers in accountable care organizations (ACOs) and various risk-based arrangements, “they absolutely want to know that their patient went to the ER” to then prompt a patient follow-up and provide care that helps prevent a readmission.

Learn more

About the Author

David N. Gans
David N. Gans MSHA, FACMPE, SENIOR FELLOW
Industry Affairs MGMA

David N. Gans, FACMPE, can be reached at dgans@mgma.com. 

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