SUMMARY OF HEALTH IT AND HEALTH DATA PROVISIONS OF H.R. 2, THE MEDICARE ACCESS AND CHIP REAUTHORIZATION ACT (MACRA)

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1 SUMMARY OF HEALTH IT AND HEALTH DATA PROVISIONS OF H.R. 2, THE MEDICARE ACCESS AND CHIP REAUTHORIZATION ACT (MACRA) H.R. 2, the SGR Repeal and Medicare Provider Payment Modernization Act of 2015 was introduced on March 24, In addition to repealing the flawed Medicare Sustainable Growth Rate (SGR) formula, this legislation includes a number of provisions that advances the availability of Medicare claims data, provides more flexibility to the Medicare Qualified Entity (QE) program and encourages electronic health record (EHR) interoperability. Below is a summary of the key health IT and health data provisions contained in H.R. 2. EMPOWERING BENEFICIARY CHOICES THROUGH CONTINUED ACCESS TO INFORMATION ON PHYSICIANS SERVICES On an annual basis, (beginning with 2015), the Secretary of Health and Human Services (HHS) shall make publicly available, in an easily understandable format, information with respect to physicians and other eligible professionals (as appropriate) on items and services furnished to Medicare beneficiaries. The data provided shall be similar to the data produced in the Medicare Provider Utilization and Payment Data: Physician and Other Supplier Public Use File that was released by HHS last year. The data will also be made available in a manner similar to the data set HHS released last year. The data must include, at minimum, the following: Information on the number of services furnished by the provider under Medicare Part B. This may include information on the most frequent services furnished or groupings of services. Information on submitted charges and payments for services under Medicare Part B. A unique identifier for the provider that is available to the public such as a national provider identifier. The data made available must be searchable by at least the following: The specialty or type of provider. Characteristics of the services furnished, such as volume or groupings of services. The location of the provider. Beginning in 2016, the Secretary of HHS must integrate this information onto Physician Compare on the Center for Medicare and Medicaid Services (CMS) website. EXPANDING THE AVAILABILITY OF MEDICARE DATA Analyses Beginning July, , consistent with applicable information, privacy, security and disclosure laws, a qualified entity (QE) may use Medicare claims data combined with claims data from other sources (as well as information derived from evaluation of provider and supplier performance) to conduct additional non-public analyses (as determined appropriate by the Secretary). QEs may also provide or sell such analyses to authorized users for non-public use (including for assisting providers and suppliers to develop and participate in quality and patient care improvement activities, including developing new models of care.) Authorized users include: providers, suppliers, an employer (as defined by ERISA), a health insurance issuer (defined in section 2791 of the Public Health Service Act), a medical society or hospital association, and any other entity that is approved by the Secretary. 1

2 With respect to the analyses Analyses provided or sold to an employer can only be used to provide health insurance to employees and retirees. QEs cannot provide or sell analyses to a health insurance issuer unless the issuer is providing the QE with data in the evaluation of performance of providers and suppliers. Access to Certain Data Consistent with applicable information, privacy, security and disclosure laws, beginning July, , a QE may Provide or sell combined data to providers, suppliers or a medical society or hospital association for nonpublic use to assist providers and suppliers in developing and participating in quality and patient care improvement activities including developing new models of care. Provide Medicare claims data at no cost to providers, suppliers or a medical society or hospital association to assist providers and suppliers in developing and participating in quality and patient care improvement activities including developing new models of care. Protection of Information In general, analysis or data that is provided or sold shall not contain information that individually identifies a patient. To the extent consistent with applicable information, privacy, security and disclosure laws, any analyses or data that is provided or sold to a provider or supplier may contain information that individually identifies a patient of the provider or supplier, including with respect to items and services furnished to the patient by other providers or suppliers. Prohibition on Using Analyses or Data for Marketing Purposes An authorized user cannot use analyses or data for marketing. Data Use Agreement A QE and a provider, supplier, medical society or hospital association must enter into a Data Use Agreement (DUA) regarding the use of any data that the QE is providing or selling to the authorized user. The DUA must describe the requirements for privacy and security of the data and (as determined appropriate by the Secretary), any prohibitions on using the data to link to individually identifiable sources of information. If the authorized user is not a covered entity under HIPAA, the DUA must identify the relevant regulations (as determined by the Secretary) that the authorized user must comply with as if it were acting in the capacity of a covered entity. Re-disclosure of Analyses or Data In general, an authorized user that is provided or sold an analysis or data cannot re-disclose or make public the analyses, data, or analyses using such data. 2

3 A provider or supplier that is provided or sold an analysis or data may (as determined by the Secretary), re-disclose the analysis or data for the purposes of performance improvement and care coordination activities but cannot make public such analysis or data or analysis using such data. Opportunity for Providers & Supplier to Review Prior to a QE providing or selling an analysis to an authorized user, to the extent that such analysis would individually identify a provider or supplier who is not being sold or provided such analysis, the QE must provide the provider or supplier with the opportunity to appeal and correct errors. Assessment for a Breach In the case of a breach of a DUA, the Secretary shall impose an assessment on the QE in cases of: (1) an agreement between the Secretary and the QE where the Secretary provided data to the QE and (2) an agreement between the QE and an authorized user where the QE provided data to the authorized user. Assessments will be up to $100 per individual entitled to or enrolled under Parts A and B under Medicare. Any amounts collected will be deposited in the Federal Supplementary Medical Insurance Trust Fund. Annual Reports Any QE that provides or sells analysis or data must submit a report to HHS that includes A summary of the analyses provided or sold including the number of analyses, the number of purchasers of such analyses and the total amount of fees received for such analyses. A description of the topics and purposes of such analyses. Information on the entities who received the data, the uses of the data and the total amount of fees received for providing, selling or sharing the data. Any other information deemed appropriate by the Secretary. Access to Medicare Data by Qualified Clinical Data Registries To the extent consistent with applicable information, privacy, security and disclosure laws, beginning July 1, 2016, the Secretary shall at the request of a qualified clinical data registry provide Medicare claims data and Medicaid and CHIP claims data (if the Secretary deems it appropriate) (in a form and manner determined to be appropriate) to a qualified clinical data registry for purposes of linking such data with clinical outcomes data and performing risk-adjusted, scientifically valid analyses and research to support quality improvement or patient safety, provided that any public reporting of such analyses or research that identifies a provider or supplier shall only be conducted with the opportunity of such provider or supplier to appeal and correct errors. Fees Data will be provided to a qualified clinical data registry at a fee equal to the cost of providing such data. Any fees collected will be deposited into CMS Program Management Account. Expansion of Data Available to QEs Beginning July 1, 2016, if the Secretary of HHS deems it appropriate, standardized extracts of claims data under Medicaid and the Children s Health Insurance Program (CHIP) for one or more specified geographic areas and time periods may be requested by a QE. 3

4 REDUCING ADMINISTRATIVE BURDENS AND OTHER PROVISIONS Promoting Interoperability of EHRs As a consequence of a significant federal investment in the implementation of health IT through the Medicare and Medicaid EHR incentive programs, Congress declares it a national objective to achieve widespread exchange of health information through interoperable certified EHR technologies by Widespread interoperability is defined as interoperability between certified EHR technology systems employed by meaningful EHR users under the Medicare and Medicaid EHR incentive programs and other clinicians and health care providers on a nationwide basis. Interoperability is defined here as the ability of two or more information systems or components to exchange clinical or other information and to use the information that has been exchanged using common standards as to provide access to longitudinal information for health care providers in order to facilitate coordinated care and improved patient outcomes. No later than July 1, 2016, the Secretary of HHS in consultation with stakeholders must establish metrics to determine whether and to what extent widespread interoperability has been achieved. If the Secretary determines that widespread interoperability has not been achieved by December 31, 2018, the Secretary must submit a report to Congress no later than December 31, 2019, that identifies the barriers to interoperability and recommends actions the federal government may take to achieve this objective. Such recommendations may include: Adjusted payments for not being meaningful EHR users under the incentive programs; and Criteria for decertifying certified EHR technology products. Information Blocking H.R. 2 requires EHR professionals under the Meaningful Use program to demonstrate no later than 1 year after enactment of this legislation, (through a process specified by the Secretary, such as the use of an attestation) that the professional did not knowingly and willfully take action (such as disabling functionality) to limit or restrict the compatibility or interoperability of the certified EHR technology. H.R. 2 also requires hospitals under the Meaningful Use program to demonstrate no later than 1 year after enactment of this legislation (through a process specified by the Secretary, such as the use of an attestation) that the hospital has not knowingly and willfully taken action (such as disabling functionality) to limit or restrict the compatibility or interoperability of the certified EHR technology. Comparability of Certified EHR Products The Secretary of HHS must conduct a study to examine the feasibility of establishing one or more mechanisms to assist providers in comparing and selecting certified EHR products. Such mechanisms may include: A website with aggregated results of surveys of meaningful EHR users on the functionality of certified EHR products to allow users to compare functionality and other features. This information may be made available through contracts with physicians, hospitals, or other organizations that maintain such information. 4

5 Information from EHR vendors about the certified products that are publicly available in a standardized format. No later than 1 year after enactment of this legislation, the Secretary must submit a report to Congress on the mechanisms that would assist providers in comparing and selecting certified EHR technology products. The report shall include information on the benefits of, and resources needed to develop and maintain such mechanisms. 5