CMS, ONC Release New Regulations on EHI What these rules could mean for ASCs BY ALEX TAIRA

On February 11, 2019, the Centers for Medi- care & Medicaid Services (CMS) and the Office of the National Coordina-

tor for Health Information Technol- ogy (ONC) concurrently released two long-awaited federal regulations addressing health information tech- nology (HIT). The two rules seek to ease the flow of healthcare informa- tion, both from provider to patient as well as between providers, and add to a continually expanding regulatory framework governing electronic health information (EHI).

ASCA is continuing to work with officials at Medicare and in the ONC to determine what impact, if any, these regulations will have on ASCs. Until more information specific to ASCs becomes available, this overview of recent actions in this area can help ASCs anticipate how federal activ- ity surrounding these priorities might affect their facilities, physicians and patients in the future.

The ONC proposed rule is called

the 21st Century Cures Act: Interoper- ability, Information Blocking, and the ONC Health IT Certification Program or the Information Blocking Rule. As its title suggests, the rule seeks to define “information blocking,” a key term that has caused industry conster- nation since its introduction in Sec. 4004 of the 21st Century Cures Act. The rule also proposes several changes to elements of the ONC Health IT Cer- tification Program and the 2015 Edi- tion Certification Criteria.

The CMS proposed rule is called

the Interoperability and Patient Access Rule. Whereas the Information Block- ing Rule adds definition to existing rules and regulations, the Interoper-

ability Rule builds on some of the current administration’s policy pri- orities, namely, giving patients access and control over their personal health information (e.g., claims data) across public payers and providers. As of the writing of this piece, both rules are open for public comment at until June 3, 2019.

A Summary of Relevant HIT Regulation

The history of EHR regulation has been covered in the May 2018 issue of ASC Focus (see page 32) but is worth revisiting as the new rules directly build on previous laws and regulations. The foundation for this year’s rules, and the governance of HIT overall, was laid in 2009’s Health Information Technology for Economic and Clinical


Health (HITECH) Act, which carved out billions of federal dollars for the promotion and proliferation of HIT. Much of the HITECH dollars were for electronic health record (EHR) imple- mentation stimulus via the Medicare and Medicaid EHR Incentive Pro- grams; if a hospital or physician could prove that they were “meaningfully using” an EHR that adhered to certain federal standards, they could receive thousands of dollars in incentive pay- ments (beginning in 2014, there also were penalties for not using an EHR). The federal standards delineating

what qualifies as an acceptable EHR for physicians and hospitals to use are set by the ONC Health IT Certification Program. In 2010, ONC collaborated with the National Institute of Standards and Technology (NIST) to develop a

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