CALIFORNIA ASSOCIATION OF PUBLIC HOSPITALS AND HEALTH SYSTEMS

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1 CALIFORNIA ASSOCIATION OF PUBLIC HOSPITALS AND HEALTH SYSTEMS March 15, 2010 Charlene Frizzera Acting Administrator, Centers for Medicare & Medicaid Services U.S. Department of Health and Human Services 7500 Security Blvd Baltimore, MD Re: Electronic Health Record Incentive Program; Proposed Rule (Vol. 75, No. 98), January 13, 2010 Via electronic submission: Dear Ms. Frizzera: On behalf of the members of the ( CAPH ), we are submitting comments regarding the Medicare and Medicaid Programs: Electronic Health Record Incentive Program Rule. California s public hospitals are committed to continuing to improve the delivery of health care to be more patient-centered, efficient and coordinated. As part of these efforts, many of California s public hospitals are on the path to implementing multiple components of electronic health records ( EHRs ). As such, we thank the federal government for prioritizing the further development of meaningful EHR use. California s public hospitals are eager to enhance their current efforts, and appreciate the support. We look forward to working with the Centers for Medicare and Medicaid Services ( CMS ) in this important endeavor, and we respectfully submit the following comments: California s public hospitals are complex health systems that play a unique and critical role in serving diverse, safety-net communities. Given the importance of the public hospital safety net in providing high quality care to millions of patients, it is critical that they are able to maximize federal incentive payments in order to improve patient care through health information technology ( HIT ). Therefore, we believe the final EHR meaningful use rule should reflect public hospital systems structure and financing so that lowincome and underserved patient populations can receive more coordinated care. California s 19 public hospitals are the core of the state s health care safety net, delivering care to all who need it, regardless of ability to pay or insurance status. Though just six percent of all California hospitals statewide, public hospitals serve 2.5 million Californians each year and provide nearly half of all hospital care to the state s 6.7 million uninsured residents. They deliver 10 million outpatient visits per year and operate more than half of the state s top-level trauma centers and almost half of the state s burn centers. They provide almost 30 percent of the care provided to California s Medicaid population and 35 percent of Medicaid visits within the hospital setting. To a large extent, their patient population has complex and multiple health care needs. Forty-three percent of new doctors in the state are trained in public hospitals. 70 Washington Street Suite 215 Oakland, CA (fax)

2 Moreover, patients receive this care in multiple settings throughout public hospital systems not just through the emergency room and inpatient settings, but through an extensive array of hospital-based and freestanding clinics (some of which are Federally Qualified Health Centers ( FQHCs ). Indeed, public hospitals are actually comprehensive systems of care, and their orientation to care is based on the need to better coordinate patient care across the system to make it as efficient and patient-centered as possible. HIT represents an essential tool that public hospitals are already starting to use to share patient data, eliminate waste and inefficiencies, and tailor care to best meet patients needs. Based on an independent, third-party assessment performed by Manatt Health Solutions, California s public hospitals are advanced in their use of HIT relative to national benchmarks, but are at different stages of adoption and face significant challenges regarding financing and implementing EHRs. Given their limited resources, public hospitals have taken a gradual approach to HIT implementation. Three of California s public hospitals have fully deployed computerized provider order entry ( CPOE ) in at least one major department. Four public hospitals in California have deployed EHRs across the enterprise (outpatient only for one public hospital), which make patient demographics, labs, radiology reports, vital signs, and dictation if not electronic documentation available to providers at the bedside and in the office. Three public hospitals are in the midst of multi-stage procurement and implementation cycles that were initiated and heavily financed long before the passage of the American Recovery and Reinvestment Act of 2009 ( ARRA ), of which the Health Information Technology for Economic and Clinical Health Act ( HITECH Act ) EHR incentive provisions are a part. At least one of the public hospital systems in California is in the earlier stages of the process. As a result, public hospital systems utilize multiple components of EHRs within their systems; however, these EHR components have been implemented separately and for distinct functions. As a result, for example, the ambulatory care information technology ( IT ) system may not be able to integrate yet with the inpatient system, or the IT systems in the primary care setting may differ from those in the specialty care setting. Various EHR components throughout one public hospital system may not yet be interoperable, often reflect disparate functionalities, and may be contracted through distinct service providers. California s public hospitals are eager to implement EHRs system-wide in fact, they already have strategic plans to do so. As such, CAPH is a partner in California s Health Information Partnership and Services Organization ( CalHIPSO ), which will serve as regional extension centers to help public hospitals throughout the state with EHR adoption. However, it is crucial that EHR meaningful use incentives and measures support the systemic implementation of EHRs in public hospitals by building upon the progress they have already made. Completely starting over and adopting an expensive, system-wide new EHR is unattainable for many public hospitals. Comments In order to reflect public hospital systems structure as systems of care, as well as the gradual nature of their implementation of EHRs, we believe the final meaningful use rule should be amended in the following ways: Comment #1: Align Meaningful Use Incentive Payment Eligibility Criteria with Health System Structures. Recommendation #1a: CMS should properly provide incentives for EHRs in public, hospital-based clinics. The proposed regulations fail to properly provide incentives for EHRs in public, hospital-based clinics. As comprehensive systems of care with extensive networks of outpatient clinics, public hospitals are disadvantaged by the proposed rule that physicians in hospital outpatient settings are unable to qualify as eligible providers ( EPs ). We strongly believe that it is counterproductive to exclude hospital outpatient physicians from receiving incentive payments given the multiple EHR systems within each public hospital system, and in light of the HITECH Act s goal of prioritizing primary care physicians for EHR adoption. CAPH recommends that CMS Electronic Health Record Incentive Program; Proposed Rule 2

3 adopt a definition of hospital setting that includes only inpatient and emergency room settings in proposed Section It would be assumed that an EP practicing in these settings would use the facilities, equipment, and EHR of the hospital. Such an approach would be consistent with Congressional intent and the statutory language. Many CAPH member public hospitals operate an extensive system of hospital-based clinics, which provide the same types of primary and specialty care that are available to the insured population in private physician offices. As CMS has acknowledged, by adopting a broad definition of hospital-based EPs that are ineligible for EHR incentive payments, CMS is excluding at least 12 to 13 percent of family practitioners, including those who provide primary care services in the hospital setting. 1 This result creates disincentives for meaningful use of EHRs in hospital outpatient settings, which ultimately thwarts the overarching goals of the EHR incentive program to improve health care quality and value. Such a result is unacceptable, given the priority placed on the achievement of meaningful use in public hospital systems and by primary care physicians under the HITECH Act. CMS also expressed a valid concern that hospitals investment in their outpatient primary care sites are likely to lag behind investments in inpatient departments as a result of this interpretation. 2 The Social Security Act ( SSA ) defines the term hospital-based eligible professional to mean an EP, such as a pathologist, anesthesiologist, or emergency physician, who furnishes substantially all of his or her professional services in a hospital setting (whether inpatient or outpatient) through the use of the facilities and equipment of the hospital, including the qualified EHR of the hospital. The statute also notes that this determination of whether an EP is hospital-based is to be made on the basis of site of service without regard to any employment or billing relationship between the EP and any other provider. 3 The Conference Report for ARRA explains that this phrase reflects Congressional intent that hospital-employed or contracted physicians should be eligible for incentives if they work in an ambulatory care clinic. 4 Although the statute expressly authorizes the Secretary of Health & Human Services ( HHS ) to adopt an appropriate definition of site of services that would be consistent with Congressional intent for purposes of the EHR incentive program, CMS proposes to apply existing payment and condition of participation standards that do not fulfill the statutory goals. CMS decision to disregard the type of service provided by the EP in developing the definition of hospital-based is directly inconsistent with the statutory language that expressly identifies the limited types of physician that Congress intended to exclude (pathologist, anesthesiologist, or emergency physician) from receiving EHR incentive payments. 5 Acknowledging that a hospital is an institution that primarily provides inpatient services, CMS nevertheless defines the term hospital setting to also include all types of outpatient care settings (on-campus and off-campus provider-based departments of the hospital), and entities having provider-based status, as these entities are defined in Section CMS is not required by statute to adopt definitions that are used in other Medicare or Medicaid contexts for the EHR incentive program. By adopting such a broad definition of a hospital setting, CMS fails to recognize the distinct costs of inpatient and ambulatory care modules of qualified EHR systems. Although the ambulatory care EHR components may be integrated with the EHR system of the inpatient facility, they are often separately certified. In all cases, implementation of the ambulatory care components involves additional licensing and implementation costs to the hospital beyond the costs of the inpatient EHR components. Under CMS current interpretation of the statute, hospitals and their EPs with large outpatient departments will not receive a higher incentive payment as a result of their provision of outpatient services. Instead, these outpatient EHR systems will be left with no source of funding Fed. Reg. at Ibid. 3 SSA 1848(o)(1)(C)(ii), 42 U.S.C. 1395w-4(o)(C)(ii), SSA 1903(t)(3)(D), 42 U.S.C. 1396a(t)(3)(D). 4 H.R. 1, 111th Cong. (2009) Fed. Reg. at Ibid. Electronic Health Record Incentive Program; Proposed Rule 3

4 CAPH disagrees with CMS conclusion that the term hospital-based must encompass all outpatient departments. 7 A more reasonable reading of this language is that it was intended to give the Secretary the authority to include outpatient departments, such as the emergency department, as appropriate. If Congress intended to use the existing Medicare definition of hospital setting, it could easily have done so. Instead, it gave the Secretary discretion to adopt an appropriately narrow definition. CAPH recommends that CMS adopt a definition of hospital setting that includes only inpatient and emergency room settings in proposed Section It would be assumed that an EP practicing in these settings would use the facilities, equipment, and EHR of the hospital. Such an approach would be consistent with Congressional intent and the statutory language. Doing so would allow primary care physicians and specialists who practice in hospital-based clinics to become eligible for incentives. Such a definition would have the same ease of administration as the current definition. Further, in California, certain hospital systems do not bill professional services separately to Medicaid. Instead, they bill for an all-inclusive rate. Therefore, although professional services can be identified on the Medicaid claim, Place of Service Codes ( POS ) are not used. Proposed Section defines a hospital-based EP as furnishing 90 percent or more of his or her covered professional services in a hospital setting, which is identified by the codes used in the Health Insurance Portability and Accountability ( HIPAA ) standard transactions that identify the site of service as inpatient hospital, outpatient hospital, or emergency room. CMS proposes to use POS Codes 21, 22, and 23 on professional claims to determine whether an EP is hospital-based. 8 Any rule that requires identification of site of service should include the flexibility to define inpatient hospital, outpatient hospital, or emergency room claims by means of type of service or alternative codes for Medicaid claims. Recommendation #1b: The regulations should be amended to recognize the structure of non-fqhc freestanding clinics. Certain CAPH members operate free-standing public clinics that employ EPs. 9 Large numbers of indigent and Medicaid patients use these clinics, as well as the counties' hospital-based clinics, as their source of primary, urgent, and specialty care. Although substantial benefits would be realized by these clinics improving upon their existing technology systems, the proposed regulations fail to adequately address incentive payments to EPs who practice in free-standing public clinics. In contrast to traditional office-based practices, EPs in free-standing public clinics are typically employees and do not supply their own technology infrastructure, track much of the data required for incentive payments under the HITECH Act, or separately bill Medicare and Medicaid. Instead, it is the counties, through the clinics, that track patient encounters and bill, collect, and retain the revenue generated by the professional services. In exchange for their salaries, the employed EPs assign their right to payment for their professional services to the counties. The proposed regulations should be amended to permit clinics to receive incentive payments on behalf of their employed EPs. Given the severe financial challenges faced by public providers, the HITECH Act incentive payments are essential. CAPH recommends that the proposed regulations be revised to provide free-standing public clinics with flexibility to (1) calculate the Medicaid volume and meaningful use requirements at the clinic level, (2) attest to meaningful use and the Medicaid volume on behalf of their employed EPs, (3) directly receive payments on behalf of their employed EPs, and (4) use historical data from the prior two years in order to calculate the EP Medicaid volume requirement. To effectuate these recommendations, it also may be necessary for CMS to incorporate a definition of free-standing public clinic into the proposed regulations Fed. Reg. at See 75 Fed. Reg. at CAPH's members may also contract for EP services. References in this comment letter to employed EPs also include contracted EPs. Electronic Health Record Incentive Program; Proposed Rule 4

5 Recommendation #1c: Clarify that patient days in distinct part nursing facility units should not be included in determining a hospital s average length of stay. CMS proposes to exclude those hospitals with average patient lengths of stay in excess of 25 days from the definition of an eligible hospital. 10 If this length of stay limitation is retained in the final regulation, CMS should clarify that patient days provided in distinct part nursing facility units of an acute care hospital are not to be counted in determining a hospital's average length of stay. If nursing facility unit days are to be included in this determination, an acute care hospital with a large distinct part nursing facility unit would be inappropriately denied incentive payments. Nothing in the statute or legislative history suggests that Congress intended this result. In California, nursing facility units in hospital buildings are subject to separate licensing requirements from those applied to the hospital, and the units are separately certified for Medicaid participation. Therefore, patient days provided in those units should not be included in the calculation of the hospital's length of stay for purposes of determining the hospital's eligibility for EHR incentive payments. Comment #2: Align Fiscal Incentives with the Financial Structures of Safety-Net Providers Serving Underserved Populations. California s public hospitals provide about two-thirds of their care to Medicaid and uninsured patients. Despite often negative operating margins, California s public hospitals provide health care to all who are in need from burn and trauma care to ongoing primary and preventive care. In order to implement EHRs to help improve patient care, fiscal incentives for EHR implementation must align with public hospitals financing and payment structures. Recommendation #2a: County indigent dollars should be counted as charity care to calculate Medicare and Medicaid shares for incentive payments. The regulations should be revised to clarify that the charges to be included in charity care charges in the Medicare and Medicaid incentive payment calculations include all charges for which the hospital determines the patient is unable to pay, regardless of the label that a hospital or state agency may affix to such charges. 11 Public hospitals report a significant amount of charity care annually, but this number alone grossly understates the actual total charity care contribution of public hospitals. California s public hospitals provide a high level of care to medically indigent persons who are unable to pay for the health care services they receive. In some cases, the charges for such services may be referred to as charity care charges, while in other cases they may be referred to as county indigent care program charges. Therefore, county indigent dollars must be included in the calculation of a hospital s total charity care contribution for purposes of the Medicare and Medicaid hospital EHR incentive payments. 12 The purpose of the charity care adjustment is to make sure the Medicare and Medicaid incentives reflect their program s share of any charity care EHR costs. Thus, the statute provides for higher Medicare and Medicaid incentive payments to hospitals that provide a greater proportion of charity care. In order for a hospital to receive the level of incentive payments provided by Congress in the HITECH Act, all of the hospital s charity care charges must be included in this adjustment, including county indigent care. 10 See definition of "Acute care hospital" in proposed Section The proposed regulations call for the use of data regarding the hospital s charges, particularly its charges related to charity care, in the calculation of both the Medicare and Medicaid incentive payments. In particular, proposed Sections (c)(4)(iii)(B) and (g)(2)(ii)(B) provide that the denominator of the Medicare and Medicaid share fractions is the product of two numbers. One of these numbers is the total amount of the hospital s charges during the period, not including any charges that are attributable to charity care, divided by the total amount of the hospital s charges during the period California Office of Statewide Health Planning and Development ( OSHPD ) Financial Data. Electronic Health Record Incentive Program; Proposed Rule 5

6 The HITECH Act authorizes CMS to utilize alternative data in place of charity care charges to determine the Medicare and Medicaid shares. In particular, Section 1886(n)(2)(D) of the SSA permits CMS to use alternative data if it would serve as an appropriate proxy for charity care. The proposed regulations at Section (h) would allow states to use alternative data to determine an appropriate proxy for charity care for the Medicaid incentive payment; however, the proposed regulations do not reference the use of a proxy for the Medicare incentive payment. CMS should specifically provide in Section that alternative data may be used when such data is reliable and will result in an appropriate proxy for charity care charges. 13 Should a public hospital elect to report using Worksheet S-10, they should be permitted to use line 19 (charity care) and additionally other state or local indigent care program data entered on lines 13 to 16. Recommendation #2b: Thresholds for eligibility for incentive payments should include all individuals whose services are funded by Medicaid dollars. In order to qualify for Medicaid incentive payments, hospitals must have a patient volume of at least 10 percent and EPs of 30 percent 14 of individuals who are receiving Medical Assistance under Title XIX. 15 We urge CMS to clarify that individuals receiving Medical Assistance includes uninsured individuals whose medical assistance is recognized and matched with Medicaid funds under an approved demonstration project. This clarification would be consistent with the HITECH s Act s special provisions for Medicaid providers in FQHCs who must have a patient volume threshold of at least 30 percent needy individuals. Needy individuals include individuals who receive Medical Assistance from Medicaid or the Children's Health Insurance Program ( CHIP ), were furnished uncompensated care, or were furnished services at reduced or no cost based on a sliding fee schedule depending on the individual s ability to pay. 16 Further, Congress clearly intended that the Medicaid incentives towards the use of certified EHR technology should be based on a provider s involvement in the Medicaid program or other care for the uninsured and lowincome populations. 17 In California, services provided to the uninsured by public hospital systems are currently treated as medical assistance and funded under the Medicaid program though the State s Hospital/Uninsured Care Demonstration Project approved under Section 1115 of the SSA. Under the Demonstration Project, expenditures for services rendered to the uninsured that fall within the statutory definition of medical assistance in Section 1905(a) of the SSA are treated as Medicaid expenditures and matched with federal dollars under two components of the Demonstration Project: The Health Care Coverage Initiative; and the Safety Net Care Pool. 18 As such, Section 1115 Medicaid Waiver demonstration programs targeted to uninsured and indigent individuals, such as the above-named programs, should qualify as Medicaid visits as outlined in Section 1903(t)(2)(A)(i). Individuals whose services are funded with Medicaid dollars should be considered Medicaid patients under these rules. While each of California s 19 public hospitals would meet the 10-percent threshold to qualify for the Medicaid EHR incentives, the 30-percent Medicaid volume threshold to qualify for EP incentive payments presents an issue. The issue arises not because these physicians and other professionals are serving paying patients whose revenue could contribute to the EHR effort, but because they are serving such large volumes of the uninsured. Certainly, Congress did not intend to penalize public hospitals and the dedicated professionals who work in the public systems for serving the most needy in their communities. As evidenced by the charity care adjustment in the incentive payment calculation and the calculation of patient volume for FQHCs, Congress intended to 13 For example, California s public hospitals file annual reports with OSHPD, a branch of the California state government. These reports, which contain charge data, are audited by OSHPD. 14 The patient volume threshold for pediatricians is 20 percent. 15 SSA 1903(t)(2)(B)(ii), 1903(t)(2)(A)(i)-(ii). 16 Proposed H.R. 1, 111th Cong. (2009), p See Special Terms and Conditions, paragraphs 42-49, 50-59; SSA 1115(a)(2)(A), 42 U.S.C. 1315(a)(2)(A). Electronic Health Record Incentive Program; Proposed Rule 6

7 encourage EHR adoption by those providers that serve the indigent. 19 The charity care adjustment will not be meaningful if the professionals who work in public hospital systems do not qualify as EPs because they serve so many uninsured that they fail to meet the Medicaid volume threshold. CAPH urges CMS to amend the proposed regulations by adding a definition in Section of individuals receiving Medicaid to include uninsured individuals whose medical assistance is recognized and matched with Medicaid funds under an approved demonstration project. The defined term would be used in the regulations in the context of provider eligibility, patient volume determinations, and payment calculations, 20 so that those providers who serve the uninsured under an approved demonstration project will be appropriately incentivized to provide those patients with the benefits of EHRs. Recommendation #2c: EHR incentive payments should not result in a reduction in other Medicaid payments, including hospital-specific disproportionate share hospital ( DSH ) allotments. CAPH is seeking confirmation that EHR incentive payments will not result in a reduction in other Medicaid payments. As major safety-net providers in California, public hospitals receive the bulk of the State s DSH allotment under Section 1923(f) of the SSA. Certain hospital-specific limits apply to DSH, which are based on the hospital s uncompensated care costs for Medicaid and uninsured patients. 21 Other Medicaid payments to public hospitals and their clinics are also subject to certain upper payment limits. 22 The EHR incentive payments set forth in Section 1903(t) of the SSA are not payments for Medicaid services rendered, and are not designed to reimburse providers for the specific costs incurred in adopting the EHR technology. Instead, they represent federal incentive payments to encourage the development and use of this critical technology. 23 Clearly, if the EHR payments result in related reductions to other Medicaid payments, the intended incentive would be lost. Therefore, CMS should provide unambiguous clarification in the final regulations that (1) the incentive payments are not patient revenue for purposes of determining the hospital-specific DSH limits under Section 1923(g), (2) the incentive payments are not considered in determining states compliance with the upper payment limits in 42 C.F.R. Part 447, and (3) the incentive payments are not offset against the certified public expenditures of public providers claimed under 42 C.F.R Comment #3: Meaningful Use Criteria Should Be Attainable by Safety-Net Providers. While California s public hospitals have made headway in implementing multiple components of EHRs, they have quite a distance still to go before reaching EHR meaningful use. They have learned that significant time and resources are required, and that the diverse population they serve brings its own set of complexities. In the midst of the economic downturn and state and local budget crises, California s public hospitals are experiencing declining resources coupled with sharp increases in demand. However, public hospitals recognize that one of the best ways to stretch limited resources is through operational efficiencies that can result from investments in HIT. But making these investments, and implementing EHRs in systems already under severe strain, requires incentives as well as a realistic timeframe. 19 H.R. 1, 111th Cong. (2009), p Proposed Sections (c)(e); (a); (g)(h). 21 SSA 1923(g)(1) C.F.R , Fed. Reg. at Electronic Health Record Incentive Program; Proposed Rule 7

8 Recommendation #3a: Extended timeframes and an incremental approach are more attainable for safetynet providers. We urge CMS to extend the deadlines so that the implementation schedule for meaningful use of EHRs is actually attainable. Furthermore, having the flexibility to adopt some measures along the way, rather than all at once, is more realistic. If CMS goal is to achieve EHR use by most providers by 2021, CMS must not penalize those who cannot begin implementation until 2012 or later. We expect that many safety-net providers will not be ready to go live with an EHR that quickly, nor will they be able to move through the different stages on such an accelerated timeline. Instead, we recommend a phased approach. This will also ensure that later adopters, in particular safety net and other Medicaid providers, are not penalized with unachievable expectations. The statute recognizes that Medicaid providers may receive EHR incentive payments over a longer period of time than will Medicare providers. Specifically, it provides that Medicaid payments may begin as late as 2016 for adopting, implementing, or upgrading certified EHR technology and extend through As CMS acknowledges, the phased approach for meaningful use is intended to account for the capabilities of the provider as well as the technology. 24 Nevertheless, in the regulatory preamble to the proposed rules, CMS establishes a Stages of Meaningful Use Criteria by Payment Year Table that fails to contemplate any payment years beyond 2015 for Medicaid providers. 25 By so doing, CMS inappropriately imposes Medicare timelines for achieving meaningful use on Medicaid providers. 26 CMS should develop a meaningful use progression schedule for Medicaid providers that would align meaningful use stages with the payment years under the Medicaid program. The proposed rule requires hospitals to adopt 23 EHR objectives that very few, if any, of California s public hospitals will be able to meet by FY The following measures will be particularly difficult for hospitals to report electronically: Providing patients with copies of their EHRs upon the patients request (see recommendation #3c) Exchanging key clinical information (e.g., discharge summary, procedures, problem list) among providers Submitting data to immunization registries Providing electronic syndromic surveillance data to public health agencies To make the achievement of meaningful use more feasible, CAPH recommends that CMS revise proposed Section to permit the satisfaction of a reduced number of the meaningful use criteria. This will increase the likelihood that public providers will acquire EHRs and attain meaningful use, which is consistent with the overall goal of the HITECH Act. Public hospital systems are committed to strengthening their EHR systems and achieving meaningful use of certified EHR technology. Nevertheless, because of the ongoing budget constraints that they face, some public hospital systems run the risk that they may not achieve meaningful use of certified EHR prior to the implementation of the Medicare payment adjustments. The HITECH Act provides that the Secretary of HHS may grant significant hardship exceptions to the Medicare adjustments for EPs and eligible hospitals on a case-by-case basis. 27 Based on the unique disadvantages experienced by public hospitals and their clinics as detailed in this comments letter, CAPH recommends that such public safety net providers be granted special consideration for qualification for the EP and eligible hospital significant hardship exceptions in the event that they cannot achieve meaningful use in the timeframes set forth in the HITECH Act Fed. Reg. at See SSA 1903(t)(5)(D), 1903(t)(6)(C); 75 Fed. Reg. at SSA 1903(t)(6)(C)(2)(ii)). 27 See SSA 1848(a)(7)(B), 42 U.S.C. 1395w-4(a)(7)(B); SSA 1886(b)(3)(B)(ix)(II), 42 U.S.C. 1395ww(b)(3)(B)(ix)(II)). Electronic Health Record Incentive Program; Proposed Rule 8

9 Recommendation #3b: Retain Medicaid program flexibility. CMS final rule must retain flexibilities Congress intended for the states for the Medicaid program. For example, states should retain the ability to make Medicaid incentive payments over a three to six year period, and allow for payment years to alternate rather than be consecutive. These flexibilities acknowledge the difference in the purpose of the EHR incentive programs under Medicare and Medicaid, as well as the inherent differences between the structure of the Medicare program and the over 50 different Medicaid programs across the country. Preserving these flexibilities allows states to tailor their programs to the needs of their beneficiaries and the providers who serve them. Recommendation #3c: Rules should take into account low-income patients lack of access to computers. Public hospitals treat a patient population that is low-income and very often, transitory and homeless. Their patients have very limited access to computers and the internet in many cases. It would therefore be very difficult for public hospitals to provide such patients with access to their health records within 48 hours, as proposed Section 495.6(e)(3)(ii) suggests. Therefore, we urge CMS to consider such patient needs before placing an unrealistic burden on public hospitals and to reflect these challenges in the final rule. Recommendation #3d: The collection of race, ethnicity and language data should minimize administrative burden, and the categories should be clarified and standardized. California s public hospitals share the Administration s goal of linguistic and cultural competence. In fact, more than half of all of California s public hospitals patients primarily speak a language other than English, and California s public hospitals are national leaders in providing qualified health care interpretation in virtually every language to facilitate communication between the provider and the patient. California s public hospitals provide more than 55,000 qualified health care interpretations each month using remote video and voice technologies to ensure language access for patients. Nine of California s public hospital systems participated in a 13-month initiative to better understand the hospital-specific and delivery system-wide barriers and facilitators to improve race, ethnicity and language data collection and use. As public hospitals serving one of the country s most diverse populations and based on our experience in using patient demographic data to increase access to care, we urge CMS to minimize administrative burden, reconsider categories for race and ethnicity, and develop a standard language list. For example, CMS proposes that at least 80 percent of all unique patients have demographics recorded or structured as data. This is a worthy ideal, but it does not reflect the reality of where hospital systems currently are in terms of collecting accurate patient demographic data. Given the short timeframe to reach the expectations set forth in the first stage, we urge CMS to consider a lower percentage. Furthermore, the recommendations state that it is not sufficient to demonstrate this capability once... an EP or eligible hospital must utilize this capability as part of the daily process. We urge CMS to clarify how the integration of this measure into the daily process will be measured. We also urge CMS to reconsider the gender and ethnicity categories to be as inclusive as possible; for example, adding transgender to the possible gender responses and using more granular ethnicity categories so as to better capture disparities within ethnic groups, as is recommended in the Institute of Medicine s report titled Race, Ethnicity, and Language Data: Standardization for Health Care Quality Improvement. Further, CMS should consider using the Census-Limited English Proficient item to derive the patient s need for language assistance. Finally, we urge CMS to consider allowing Registration staff to have the option of marking Unavailable, Declined, or Unknown when data cannot be derived from patients. Electronic Health Record Incentive Program; Proposed Rule 9

10 Thank you for the opportunity to submit comments to CMS on the Medicare and Medicaid Electronic Health Record Incentive Program. We would also like to acknowledge the comments provided by the National Association of Public Hospitals and Health Systems ( NAPH ), our sister national organization. We appreciate the opportunity to offer our thoughts about how the final rules can best reflect the unique role and structures of public hospital systems, so that they and their patients can realize the promise of improved care through the meaningful use of EHRs. Sincerely, Erica Murray Vice President Cc: Jonah Frohlich, Deputy Secretary of Health Information Technology, California Health and Human Service Agency Cindy Mann, Director of Center for Medicaid and State Operations Electronic Health Record Incentive Program; Proposed Rule 10

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