July 15, 2020

Volume X, Number 197

July 14, 2020

Subscribe to Latest Legal News and Analysis

July 13, 2020

Subscribe to Latest Legal News and Analysis

CMS Proposed Rule, Rebranding of Medicare and Medicaid Electronic Health Records Incentives Program Shifts Focus to Interoperability and Patient Access

The Centers for Medicare and Medicaid Services (CMS) recently released its Proposed Rule that, in major part, rebrands the previously known Medicare and Medicaid Electronic Health Records (EHR) Incentives Program into the Promoting Interoperability Program. The rebrand shifts the focus of the program to ensure that providers facilitate patient access to their own health data, and limit the burden on health care providers when it comes to monitoring clinical care using health technology.

The underlying aim of the original EHR Incentives Program was to provide incentive payments to health professionals and hospitals that demonstrate meaningful adoption, implementation, upgrading, or meaningful use of health technology. Under the Proposed Rule, CMS is setting its sights high on data health interoperability and striving to ensure that patients have comprehensive access to their own health data.

Patient Access

As written, the Proposed Rule states that starting in 2019, hospitals will be required to make EHRs available to patients on the same day patients are admitted and released from a hospital.  In relevant part – the Proposed Rule would require a 90-day EHR reporting period for providers already participating in the current EHR Incentive Programs, beginning in 2019 and 2020.  Further, providers would have to transition into using the 2015 edition EHR certified technology (CEHRT) beginning in 2019, as opposed to the 2014 CEHRT currently used, in order to demonstrate meaningful use. The Proposed Rule notes that the functionalities of 2015 CEHRT will increase interoperability and the flow of information between providers and patients.

The 2015 CEHRT criteria contains requirements for systems to demonstrate that it can share and extract files across systems, as well as a requirement that the vendor allow the provider to extract patient data themselves (the previous 2014 CEHRT did not include a requirement that vendors allow providers to extract data). Further, the 2015 CEHRT contains a new function that supports increased patient access to their health information through email transmission. These criteria, CMS states, will result in increased interoperability between EHR systems. A failure to use such technology could result in a reduction in Medicare reimbursement for a provider.  Notably, the 2015 CEHRT criteria also includes features that are designed to improve the functionality, analysis capability, and quality of electronic Clinical Quality Measures (eCQMs) data.

Clinical Quality Measures

eCQMs use data electronically extracted from electronic health records and/or other health information technology systems to measure the quality of health care provided and use this detailed clinical data to assess the outcomes of treatment provided by health care providers and organizations. The Proposed Rule presents the possibility of removing the following seven eCQMs in which the costs associated with implementation have been deemed to outweigh the benefits:

  1. Primary PCI Received within 90 Minutes of Hospital Arrival (AMI-8a) (adopted at 79 FR 502456)
  2. Home Management Plan of Care Document Given to Patient/Caregiver (CAC-3) (adopted at 79 FR 50243 through 50244)
  3. Median Time from ED Arrival to ED Departure for Admitted ED Patients (NQF #0495) (ED-1) (adopted at 78 FR 50807 through 50710)
  4. Hearing Screening Prior to Hospital Discharge (NQF #1354) (EDHI-1a) (adopted at 79 FR 50242)
  5. Elective Delivery (NQF #0469) (PC-01) (adopted at 78 FR 50807 through 50810)
  6. Stroke Education (STK-08) (adopted at 78 FR 50807 through 50810)
  7. Assessed for Rehabilitation (NQF #0441) (STK-10) (adopted at 78 FR 50807 through 50810).

The Proposed Rule provides additional detail as to why these individual eCQMs were selected for removal. CMS believes that a reduction in the overall number of eCQMs will reduce costs and improve the quality of reported data and allow hospitals flexibility in selecting which eCQMs to report to best reflect their patient populations and support internal quality improvement efforts. As in 2018, hospitals would submit one self-selected calendar quarter of data on four self-selected measures.

Comments on the Proposed Rule will be accepted until June 25, 2018. 

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume VIII, Number 130


About this Author

Sumaya Noush, Drinker Biddle Law Firm, HealthCare Attorney

Sumaya Noush counsels health care clients on strategic and operational matters including transactions, corporate governance, and regulatory compliance. She helps her clients navigate the daily challenges of running their operations while identifying opportunities for growth in today’s rapidly evolving and highly competitive health care market.

Sumaya previously served as a law clerk for Drinker Biddle, an instructor at Yale’s Bioethics Institute where she taught a seminar on FDA law and medical ethics, and a Visiting Scholar at...


Daniel L. Walbright assists major hospitals and health care systems with issues including federal and state fraud and abuse compliance. His experience includes researching and drafting memoranda, conducting due diligence review, and drafting legal motions. Daniel has also worked with corporate clients, assisting with matters including private stock acquisition, Stark Law claims, joint ventures, defamation claims and OIG compliance issues.

During law school, Daniel interned for the Carle Foundation Hospital in Champaign, Illinois. In this role, he researched and wrote legal memoranda on issues including ADA matters, Stark Law claims and HIPAA regulations. He also assisted with review of hospital policies, bylaws, facilities and websites to ensure compliance with ADA regulations and other state and federal laws.