Under the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH Act), eligible hospitals and critical access hospitals must make a “meaningful use” of “certified electronic health technology” or face reductions in Medicare reimbursement during Medicare’s 2015 fiscal year (which begins October 1, 2014). One of the many Stage 2 requirements includes the following one related to patient on-line access to health records:
Meaningful Use Core Measures, Measure 6 of 16
“More than 5 percent of all unique patients (or their authorized representatives) who are discharged from the inpatient or emergency department (POS 21 or 23) of an eligible hospital or CAH [must] view, download or transmit to a third party their [online] information during the EHR reporting period.” (Emphasis added.)
A literal reading of this measure prompted hospitals to frequently ask whether a patient who accesses their online health information before they are “discharged” will count towards this meaningful use objective. The Centers for Medicare and Medicaid Services (CMS) posted an answer to this question that we like and think hospitals will like as well. CMS says “yes”.
Here is CMS’ full answer to FAQ 9824:
“The 2nd measure of the “Patient Electronic Access” core objective for hospitals and critical access hospitals (CAH) requires that more than 5 percent of the unique patients who are discharged during the EHR reporting period access an online patient portal to view, download or transmit to a third party their information about their hospital admission. The intent is to encourage patients to use online access to their health information for the active management of their care.
The denominator for this measure includes all unique patients whose discharge date from the hospital or CAH falls within the EHR reporting period selected.
Patients may choose to access their information prior to leaving the hospital, where guidance and support in using the online patient portal is still available to them. To this end, the hospital may include patients found in the denominator who access their information on or before the hospital discharge date in the numerator.
For patients who access their information after the hospital discharge date, the access must take place no later than the date of attestation in order for those patients to be counted in the numerator.
For more information about actions taken outside of the EHR reporting period and numerator calculations, please see FAQ 8231. https://questions.cms.gov/faq.php?faqId=8231“
To read this FAQ and others on the CMS FAQs webpage, click here.
We liked CMS’ answer because the best time for hospitals to ensure that patients access their health records on-line may be while the patients are still at the hospital when a staff member can show them how to do it!
Wyatt HiTech Law Blog 
Kathie,
The small reference to CMS FAQ8231 has raised a considerable numbers of questions for us and led to a LOT of research on my part to understand it’s implications. This has all led to one question: Does CMS FAQ8231 apply to Eligible Hospital Stage 2 CPOE? There have been a lot of stones turned over to get to this point. An even better question: Is there a list of Eligible Hospital Stage 2 measures that CMS FAQ8231 applies to?
Any help on this would be very much appreciated!
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Jeffrey,
Thanks for your inquiry. You do pose an interesting question. It would take me a little time to research and answer your question. I can’t do that properly without opening a file and obtaining an engagement letter signed by the appropriate person in your organization. If you would like for me to do that, let me know and I’ll run a conflict check (which we are required to do for all new clients) and send an engagement letter for you to forward to the appropriate person at your organization.
Best, Kathie
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Kathie,
This (urgent) question has now become more specific: Does CMS FAQ8231 apply to Stage 2 Eligible Hospitals for the CPOE-medication orders numerator?
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Jeffrey, Have you tried writing to CMS to ask this question? You can post a follow-up question to a FAQ and CMS will reply. Sometimes the reply is helpful, sometimes not. But I recommend that you give this a try. I really cannot provide legal advice without opening a file and having your employer sign an engagement letter. Sorry, Kathie
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Hi Kathy,
This was great news when we first read it but have come up with a follow up question that will make a big difference on how we use this information going forward. What constitutes a view if the patient is in house? The CCDA with the summary detail does not process until after discharge. If the patient had been here before within the reporting period they could view those results which would satisfy the measure. But if only demographic information is in the portal while in-house, does that constitute a view?
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Stephanie,
I just saw your comment this morning and apologize for not replying sooner! Have you tried writing to CMS to ask this question? You can post a question to CMS by going to FAQ 9824 and CMS will reply (you will have to register in the CMS FAQ system first). It usually takes CMS about 7-10 days to reply. In addition, by asking CMS this question, this will help bring their attention to an issue of which the CMS staff likely was not aware when they designed this particular MU criteria. It might even lead to a modification or official clarification of the MU criteria by CMS that is helpful to everyone struggling with the same or similar issue. I would be happy to explore an answer to your question but I would need an engagement letter between your organization and my law firm.
Best, Kathie
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I tried to post the FAQ to CMS but when I tried they were no longer accepting questions. That was toward the end of October. I have not tried since. Thanks.
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I wonder if their mailbox was full or if there was some other technical issue right at that time. I posted a question to a CMS FAQ on October 17 and got a reply in early November.
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CMS is no longer taking Incentive Program questions on their website. Feel free to call them for a fun experience though. Your tax dollars (not) at work.
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Both Stephanie and Jeffrey ask good questions in their comments to this post. Jeffrey’s question is directed at the reference by CMS within FAQ 9824 to MU FAQ 8231. CMS “updated” FAQ 8231 on 6/23/14, a couple of months after we posted the above article. As of today, here’s a copy and paste of what FAQ 8231 says:
“The criteria for a numerator is not constrained to the EHR reporting period unless expressly stated in the numerator statement for a given meaningful use measure. The numerator for the following meaningful use measures should include only actions that take place within the EHR reporting period: Preventive Care (Patient Reminders) and Secure Electronic Messaging.
For all other meaningful use measures, the actions may reasonably fall outside the EHR reporting period timeframe but must take place no earlier than the start of the reporting year and no later than the date of attestation in order for the patients to be counted in the numerator, unless a longer look-back period is specifically indicated for the objective or measure.”
In sum, actions from the beginning of the EHR reporting period through the date of attestation (which could be either before or after the end of the EHR reporting period depending on when you “attest”) can be counted in the numerator for all MU criteria except the MU criteria for Preventative Care (Patient Reminders) and Secure Electronic Messaging.
Stephanie’s question is whether having a patient view only the demographic information that is available before discharge will constitute a “view” for purposes of the “view, download & transmit” MU criteria. She explains that the consolidated clinical document architecture (CCDA) summary of care does not process until after discharge. If this is the case for most CEHRTs, then this leads me to believe that most hospitals face the same issue in that only demographic data is available to view before discharge. The result is that the “help” that CMS seemed to provide through FAQ 9824 is actually “meaningless” (sorry for the pun) for most providers.
I say this based on the current Stage 2 MU Core Measure 6 of 16 for Eligible Hospitals (EH) and CAHs that CMS reissued August 2014 (available here: http://www.cms.gov/Regulations-and-Guidance/Legislation/EHRIncentivePrograms/downloads/Stage2_HospitalCore_6_PatientElectronicAccess.pdf).
Part 2 of Core Measure 6 requires: “More than 5 percent of all patients (or their authorized representatives) who are discharged from the inpatient or emergency department (POS 21 or 23) of an eligible hospital or CAH during the reporting period view, download or transmit to a third party their information.” Note the reference to “their information”. On page 2, CMS sets forth the “information” that “must be available to satisfy the objective and measure” as follows:
o Patient name.
o Admit and discharge date and location.
o Reason for hospitalization.
o Care team including the attending of record as well as other providers of care.
o Procedures performed during admission.
o Current and past problem list.
o Current medication list and medication history.
o Current medication allergy list and medication allergy history.
o Vital signs at discharge.
o Laboratory test results (available at time of discharge).
o Summary of care record for transitions of care or referrals to another provider.
o Care plan field(s), including goals and instructions.
o Discharge instructions for patient.
o Demographics maintained by hospital (sex, race, ethnicity, date of birth, preferred language).
o Smoking status
As one can see, “demographics” is only one of the many bullets on the above list of “information” that must be available.
Now we know why attestations for EHs and CAHs are down in Stage 2 as compared to Stage 1. CMS has set up a criteria over which the EH/CAH has very little to no control in terms of achieving. The only exception CMS currently provides for Core Measure 6 is when the EH/CAH is “located in a county that does not have 50 percent or more of its housing units with 3Mbps broadband availability according to the latest information available from the FCC on the first day of the EHR reporting period is excluded from the second measure.” This exception does not account for counties with a mostly elderly population or mostly non-office workers who do not consider home computer access as vital as those of us living in metro areas working office jobs where we’ve come to believe that we can’t live without computer access 24/7.
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Ugh! That is disheartening. If CMS does not allow itself to hear from providers, then how can it ensure that it’s criteria are actually achievable and, thus, meaningful? See my further reply to both you and Stephanie.
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Well, my question to CMS was on another CMS program unrelated to MU. Jeffrey says that CMS stopped taking MU questions. See my further reply to both you and Jeffrey.
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Thanks Kathie. I find CMS verbiage to be very convoluted (intentionally I suppose). That they are no longer taking questions is very concerning. I have 2 unanswered questions still out there prior to their closure. I appreciate your response though.
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