CMS Proposed Rule on Hospital EHR “Electronic Patient Event Notifications”

By Kathie McDonald-McClure and Margaret Young Levi

Doctor Speaking with PatientSummary: CMS proposes new Medicare Conditions of Participation for hospitals (including psychiatric and critical access hospitals) that will require the hospital EHR to send electronic event notifications to other providers when a patient has been admitted, discharged or transferred.  What must hospitals do, and how much time is needed, to operationalize the new CoPs, considering a process will need to be developed that identifies providers who should and can receive these event notices? What will be required, and how much time is needed, to reconfigure EHRs to send the notifications and demonstrate compliance with the multiple facets of the CoP?  CMS is seeking stakeholder input on the proposal, including a reasonable time frame for implementation.  UPDATE: On April 19, 2019, CMS extended the comments deadline from May 3, 2019 until June 3, 2019.

On March 3, 2019, the Centers for Medicare & Medicaid Services (CMS) released a Proposed Rule (click here) to advance the electronic health record “interoperability” objectives of the 21st Century Cures Act (Cures Act).  In furtherance of this objective, the Proposed Rule would, among other things, require electronic health records (EHRs) to transmit certain patient event notifications to other providers in an effort to improve care coordination.  While these objectives are laudable and are consistent with providers’ desire to improve care coordination among providers, industry stakeholders are concerned that the Proposed Rule may not be practical or achievable. Can EHRs be configured to send and confirm that the right providers can receive, and do in fact receive, the right event notifications at the right times?

Recent reporting on this Proposed Rule has focused on the planned mandate for Medicare Advantage plans and ACA health benefit plans to provide insureds with access to health information maintained on them by the plans.  What has not received as much attention are the proposed Medicare Conditions of Participation (CoPs) that require hospitals to electronically notify other providers of a “patient’s admission, discharge, and/or transfer to another health care facility or to another community provider.”

The CoPs would require hospitals to send “electronic patient event notifications” to a wide range of providers who have an “established care relationship with the patient relevant to his or her care.” The providers who might receive electronic notifications would include “licensed and qualified practitioners, other patient care team members, and post-acute care services providers and suppliers” (collectively “PAC Providers”).  The notifications would be sent  via a hospital EHR that has been certified by the Office of National Coordinator of Health Information Technology (ONC) to the PAC Providers directly, or indirectly through an intermediary that facilitates health information exchange between providers.

CMS noted that “virtually all EHR systems generate the basic messages commonly used to support electronic patient event notification” because they generate admission, discharge and transfer (ADT) messages to communicate information about key changes in a patient’s status within the EHR.  84 Fed. Reg. 7650.  Although, as CMS acknowledged, current ONC standards do not require EHRs to send ADT messages outside of the EHR system[1], CMS believes EHRs could use the internal change in ADT status to trigger an external message to a receiving provider.

Although the exact content of the event notification has not been established, CMS proposes it minimally include the patient name, treating practitioner name, sending institution name, and, if not prohibited by other applicable law, the patient’s diagnosis.  In addition, CMS says that hospitals would need to demonstrate that the notification was a) transmitted at the time of the ADT, b) for treatment, care coordination or quality improvement purposes, c) to a provider with an established care relationship with the patient relevant to his or her care, and d) for whom the hospital has a reasonable certainty of receipt of notifications.  Although not stated by CMS, these requirements, in part, appear to be safeguards against inducing unlawful referrals.  Hospital EHRs will need to be configured to not only send the notifications but also to confirm compliance with these specific requirements.

Even if the hospitals have EHRs that are able to send the notifications, many PAC providers are not ready to receive them.  PAC providers, such as nursing homes and home health agencies, were not provided financial incentives under the HITECH Act, and there has been no other comparable mandate, to adopt CEHRT. As a result, many PAC providers are using EHRs that are not designed for interoperability with a hospital CEHRT through which an event notifications would be received.  Moreover, both the hospital and PAC provider will be responsible under HIPAA for ensuring that such transmissions will be secure, including properly configured routers and firewalls.

CMS is soliciting public comment on this proposal:

We seek comment on requirements for patient notice and consent, and applicable legal and regulatory requirements, and whether or how this data transfer could be cumulative over time and between various providers. We seek input on the utility to providers of obtaining all of their patients’ utilization history in a timely and comprehensive fashion. We also seek input on potential unintended consequences that could result from allowing a provider to access or download information about a shared patient population from payers through an open API. Finally, we seek comment on the associated burden on plans to exchange this data, as well as the identification other potential statutory or regulatory barriers to exchanging this data.

Comments are due on June 3, 2019.

[1] Most hospitals have adopted EHR technology that has been certified as meeting the standards set by ONC certifications standards that were established pursuant to the HITECH Act of 2009 for certified electronic health record technology (CEHRT).  Eligible hospitals that certified the adoption and/or use of CEHRT received financial incentives under HITECH.