Today, with a decade in the Health Information Technology for Economic and Clinical Health (HITECH) Act’s rear window and after over $37 billion in payments for the Promoting Interoperability (formerly Meaningful Use) programs, the United States enjoys almost ubiquitous adoption of electronic health records (EHRs) in eligible hospitals and office-based physicians. However, 32 percent of individuals who saw a doctor in 2017 reported experiencing a gap in information exchange, despite advancements in and adoption of technology and standards and efforts such as CommonWell Health Alliance.
This leaves many of us scratching our heads and asking questions. Specifically, has the private sector responded appropriately to the growing need for interoperability? Is there a demand or an urgency for government to pull any additional policy levers? Navigating the current environment of regulations related to data exchange is complex, and some argue government actions and policies to date have created unintentional, untenable consequences. Amid an Administration focused on deregulation and deferential to free market, what can we expect from our current government?
Health IT policy leversThere are many options to consider as health IT policy levers can be any form of incentive, penalty or mandate used to effectuate change in support of health IT adoption, use or interoperability. Although each federal entity has its own respective mission, levers, programs and activities, the federal government's collective mission for health IT is “to improve the health and well-being of individuals and communities through health information that is available when and where it matters most.” In addition to the U.S. federal government’s responsibilities as protector of its citizens, economy and public service, it is also both the largest provider of health care and the largest payor. As such, it has an obligation to reduce inefficiencies in its own spending.
The Veterans Health Administration (VHA) is the largest integrated health care system in the nation, providing care at 1,240 health care facilities, including 170 VA Medical Centers and 1,061 outpatient sites of care to over 9 million veterans enrolled in the VA health care program. More than 1.8 million veterans have received care through the Veterans Choice Program by way of nearly 50 million appointments and a half-million participating community partners. The government has a vested interest in ensuring veterans’ health data is available at the point of care, both within the VA’s four walls and across the continuum of care in the community.
Congress recently passed the VA Mission Act of 2018, one provision of which removes the existing prohibition on sharing data with community providers without consent, a significant barrier to data exchange. VA could certainly pull various levers to incent community providers to participate in data exchange for veterans. These providers already must agree to submit medical records within a specified timeframe (60 days for outpatient stays, 25 days for inpatient) or risk payment for services rendered. VA could implement additional requirements to encourage electronic sharing of data through its payment structure, including incentivizing use of Trusted Exchange Framework and Common Agreement (TEFCA). Further, with some exceptions, Veteran Community of Care Providers must also be Medicare-participating, meeting Conditions of Participation. Centers for Medicare and Medicaid Services (CMS) recently requested input on ways to better achieve interoperability in the EHR program and whether to revise the Medicare Conditions of Participation related to interoperability to promote sharing of health data – a significant policy lever.
Provider adoption of Certified EHR TechnologyThe U.S. federal government is the nation’s largest payer of health care at over $1.2 trillion, or 28 percent of total national health expenditures, from Medicare and Medicaid funds. CMS has a history of enacting policies to advance interoperability through programs such as the e-prescribe incentive program, the Promoting Interoperability program and for certain electronic clinical quality measure reporting programs. These programs proved to be tremendously successful in promoting the adoption of Certified EHR Technology (CEHRT) for hospitals and clinicians.
Not all provider types were included in these programs and have not benefited from payments or incentives to engage in electronic exchange of information. Subsequently, these providers also lag in adoption of health IT and are not on a level playing field with their exchange partners. For example, ONC’s 2016 report on EHR Adoption and Interoperability among Skilled Nursing Facilities (SNFs) indicated that, while 64 percent of SNFs used an EHR, only about 30 percent of SNFs electronically exchanged information. Their rate of EHR adoption and use outpaced other LTPAC venues of care such as home care and hospice, assisted living facilities and inpatient rehabilitation facilities (IRFs).
Behavioral health is another venue of care where providers have been slow to adopt EHRs. A 2012 survey indicated that only 21 percent of behavioral health organizations used EHRs. CMS likely cannot create a new incentive program that would involve new funding without authorization and financing from Congress. The House recently passed a bipartisan bill (H.R. 3331) that would incentivize behavioral health providers to adopt EHRs, following passage of a similar bill (S. 1732) by the Senate last month. H.R. 3331, the Improving Access to Behavioral Health Information Technology Act, would incentivize behavioral health providers to integrate EHRs into their practices. The House and Senate versions of the bill must now be reconciled before moving to President Trump for his signature.
Health care is moving away from fee-for-service (FFS) and toward alternative payment models (APMs) and value-based care (VBC), which should encourage providers to exchange data in order to maximize the full effect of these payment models. However, FFS can still play an important role as a vehicle for encouraging behavior. For example, CMS offers a FFS payment to ambulatory providers under the Physician Fee Schedule to receive and review information for their patients after a hospital encounter, which could be adopted for other providers and facilities to incentivize and encourage desired behavior.
We also see attempts to thwart the opioid crisis with health IT. While the timing remains unclear for Senate consideration of comprehensive opioid legislation, in the coming weeks, the House and Senate staff are expected to begin work on combining the House-passed opioid bills with the Senate’s committee-approved opioid measures. Included are aligning 42 CFR Part 2 substance abuse disorder records with Health Insurance Portability and Accountability Act (HIPAA) for the purposes of treatment, payment and health care operations between covered entities; requirements for PDMP checking; and electronic prior authorization checking for drugs covered under Medicare Part D.
What’s next for health IT interoperability?The stakes are high for vendors and providers that block the exchange of data, which includes decertification of EHR solutions that don't share data, potential anticompetitive behavior allegations and possible violations of the health care trifecta legal heavy hitters (the Anti-Kickback statute, the Stark Law and the False Claims Act). We anxiously await the 21st Century Cures Act data blocking regulations from ONC, now expected this fall.
We can expect that current talk of overhauling HIPAA, addressing data governance and access issues across business models, harmonizing a patchwork of laws at the state level and understanding the effects of global efforts such as GDPR will certainly coalesce into government action in the near-future.
In the meantime, many expect consumer-mediated exchange to be the tipping point that drives interoperability. Efforts are underway to empower consumers and free data for the patient to mitigate their own data exchange, with the support of CMS’ Blue Button 2.0 and continued implementation of APIs accessed by apps of the consumer choice, including Apple HealthKit. This study in behavioral economics hypothesizes consumers will choose their provider in part on the provider’s ability to support his desired technology needs.
Our government already plays a strong role in health IT interoperability. Future actions should leverage policies with thoughtful outcomes in mind. With interoperability, we can’t afford to get it wrong.
The sheer size and rapid-fire release of regulations are nearly impossible to keep up with. When you work with us, the pressure, the risk and the fear is diminished. Learn more about our regulatory services.