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Interoperability Q&A with Ross Marguiles, Associate at Foley Hoag: part 1

CarePort’s recent webinar delved into the details regarding CMS’ recently published Interoperability and Patient Access Final Rule and changes to Medicare Conditions of Participation (CoPs). The new regulations mandate that hospitals with an EHR system capable of sending ADT notifications send electronic patient notifications for patient admissions, discharges and transfers to PCPs, physician groups and post-acute providers.

Hosted by Sara Radkiewicz, CarePort’s Head of Product, and Ross Marguiles and Jeremy Meisenger, attorneys at Foley Hoag, LLP with special expertise in Medicare and Medicaid law and regulations, the webinar analyzed the final rule and shared how hospitals and health systems can comply by the May 2021 deadline.

Given the complexity of the final rule’s CoPs, we followed up with Ross Marguiles – who has special expertise in regulatory oversight – to clarify details regarding the recently released mandate.

How many notifications – for a single patient, during a single stay – do hospitals need to send, and what providers should be notified?

It’s possible that a hospital will send multiple notifications for a patient during a single stay. CMS is monitoring notifications for each individual transition through the care continuum. For example, consider a patient that presents at the ED and is later admitted as an inpatient stay. The hospital is expected to send one notification upon registration in the ED, one notification upon admission as an inpatient stay, and one notification upon patient discharge from the hospital.

Pursuant to the updated CoPs, hospitals must make reasonable efforts to notify all applicable post-acute care services providers and suppliers. In general, this means that if a patient is admitted to the hospital from a post-acute provider, or discharged from the hospital to a post-acute provider, that post-acute provider – whether a SNF, LTCH, IRF or home health agency –  must be notified.

In addition to post-acute care providers, hospitals must also notify the individual primarily responsible for that patient’s care – whether that is the patient’s established primary care practitioner, the patient’s established primary care practice group, or other practitioners responsible for the patient’s care. You can imagine, for example, that in certain circumstances, the practitioner primarily responsible for the patient’s care may be a particular dialysis facility, or an oncologist.

The final rule stipulates that hospitals must identify “applicable” PAC providers, and “established” primary care providers. How can hospitals determine which PACs and PCPs apply to this criteria?

“Applicable” PAC providers are either (1) those with whom the patient has an established care relationship immediately preceding hospital registration or admission, or (2) those providers to whom the patient is being transferred or referred. You can also send to a broader swath of providers. If you are aware – perhaps through an intermediary – that the patient didn’t immediately come from a post-acute care setting, but was at a post-acute facility recently, you can also send a notification to that provider.

An “established” PCP is the provider that needs to receive notification of the patient’s status for treatment, care coordination or quality improvement purposes. CMS makes clear within the final rule’s preamble that the focus should be on the patient’s PCP or group identified by the patient – or through the medical record – as primarily responsible for his or her care.

Can hospitals rely on an intermediary to transmit this patient event notification data on their behalf?

Absolutely! The final rule explicitly recognizes the ability of an intermediary – or third party – to facilitate the transmission of patient event notifications, so long as the intermediary doesn’t impose restrictions on which recipients receive notifications. Within the final rule, CMS states: “We agree that the use of intermediaries to deliver patient notifications can reduce burden on hospitals and support effective notification systems.” Ultimately, hospitals can rely on intermediaries for purposes of making a “reasonable effort” to facilitate notifications to both PACs and PCPs.

You used a term – “reasonable effort” – that we’ve seen in the final rule. What does that really mean within this context?

This is an interesting question. In the proposed rule, this component was originally positioned as “reasonable certainty.” Specifically, hospitals would have been required to show that they were transmitting this data to PACs and PCPs. In response to the proposed rule, hospitals raised a number of concerns – including the fact that many PACs or PCPs simply don’t have the capacity to receive messaging through any system that connects to a hospital system.

CMS acknowledged this limitation in the final rule, which states: “a hospital (or a CAH) must demonstrate that it ‘has made a reasonable effort to ensure that’ the system sends the notifications to any of the following that need to receive notification of the patient’s status for treatment, care coordination, or quality improvement purposes.” By making this distinction, CMS emphasizes that efforts should focus on circumstances that are within the hospital’s control.

Therefore, if a hospital attempts to send a notification but the provider is not capable of receiving a notification via the hospital’s system, the hospital has still made a reasonable effort. CMS is not asking hospitals to redevelop systems and capabilities, so long as a reasonable effort is made.

Stay tuned for Part 2 of our interview with Ross Marguiles, which will further explore what the CoPs mean for organizations that need to comply.

CarePort’s interoperability webinar is available for download here. To learn more about CarePort’s interoperability offering, please contact us.

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