AHA stage 2 meaningful use comments slammed as 'spurious'

By Bernie Monegain
12:50 PM

No sooner had the American Hospital Association submitted its comments on the proposed rule for Stage 2 meaningful use than the group came under fire for "spurious" arguments on patient access to online information.

“We know from the last two years of public debate on meaningful use that the association has really pushed back hard on the requirement around giving patients access to their health information electronically,” Christine Bechtel, vice president of the National Partnership for Women & Families, and a member of the federal Health IT Policy Committee, told Healthcare IT News. “It makes no sense to me that they would fight so hard against it, and create such spurious arguments.”
Deven McGraw, a lawyer and director of the Health Privacy Project at the Center for Democracy and Technology, and also a member of the federal Health IT Policy Committee, called foul in her May 2 blog post, suggesting the AHA arguments submitted to the Centers for Medicaid & Medicare Services April 30 were one more attempt to resist long needed change.

Of the 68 pages of comments the AHA submitted to CMS, with a letter signed by AHA Executive Vice President Rick Pollack, Bechtel zeroed in on the AHA’s position on the CMS objective to provide patients the ability to view online, download, and transmit information about a hospital admission. CMS would require the information to be available within 36 hours of discharge and that 10 percent of all discharged patients view, download or transmit to a third party their information during the reporting period for meaningful use.

The AHA argues that the objective is counter to HIPAA privacy and security rules and recommends the objective be removed for two reasons: “(1) CMS does not have regulatory authority over patients’ access to their health records; and (2) the objective is not feasible as specified.”

“We again urge CMS not to create in, or facilitate through, the meaningful use rule a potentially different or conflicting set of obligations for privacy and security compliance,” AHA states in its comments. “It is the Office of Civil Rights (OCR), and not CMS, that regulates and enforces HIPAA. The inclusion of this particular objective and related measures in the meaningful use rule is inappropriate and we urge CMS not to adopt the proposal.”

The AHA also advocates for a 30-day timeframe for giving patients access to discharge information.

In her blog post, McGraw took issue with the AHA stance on the HIPAA rule.

“The argument that the existence of these HIPAA provisions prevents CMS from imposing more meaningful access to patient data as a condition of receiving substantial taxpayer subsidies is the legal equivalent of a "Hail Mary pass” (or an attempt to throw spaghetti on the wall to see if any of it sticks),” she wrote. “HIPAA is a baseline health privacy law, and laws that provide more rights to patients are expressly not preempted. If a state were to take CMS’ proposed meaningful use requirements and make them law, that law would stand as not being preempted by HIPAA.  There's no basis for the argument that CMS can't create conditions on meaningful use dollars that give patients greater rights."

“The policy committee has two or three times now supported that objective,” Bechtel said. “CMS has supported that objective; ONC has supported that objective. So it’s really been just the hospital association that has been pushing against it this hard.”

In her view it doesn’t make sense because giving the discharge information to patients in a timely manner helps prevent unnecessary readmissions, she argued. Moreover, she said, it’s time to do more than pay lip service to putting patients at the center of care.

[See Bechtel's blog: Don't Let Them Destroy Patient Protections in Health IT!]

Culture change
“The reason why I think they don't want to do this is because it costs them money, number one, to do it because it’s another part of implementing a comprehensive electronic health record system," said Bechtel (pictured at right). "But more importantly, it represents a big culture change – a big culture shift in healthcare where we can’t just talk anymore about patient-centered care. Now the rubber is hitting the road. We’re making it a reality. One way we’re doing that is giving patients access to their own health information. So, it’s a big culture change to do that and to help patients be in the driver’s seat for their own healthcare.”

Bechtel concedes there may be challenges inherent in moving toward engaging patients, but she says patents want to be included in their own care, and her organization has surveys that support the assertion.

"Everybody’s getting a meaningful use payment based on the same formula, said Bechtel. "They’re getting taxpayer dollars to implement IT, and they have to do it in a meaningful way.  And, guess what, this is what’s meaningful to patients and families."

CHIME and Premier
On the same topic, CHIME, which represents 1,400 healthcare CIOs, commented: “We believe giant strides in patient engagement can begin by making online access of information available to the patient, within 4 business days. Additionally, the capability to allow patients to download and transmit their information would potentially further this engagement.”

However, CHIME said one of the major challenges in many cases would be hospitals with multiple EHRs  and the need to flow information into one portal.

CHIME objected to the measure that calls for 10 percent of discharged patients to view or download their information online.

“We believe it is premature, at best, to adopt measures not completely under the control of EHs," wrote CHIME officials. "Providers’ performance on MU objectives (and related EHR MU incentive payments) should not be dependent upon whether their patients do or do not choose to complete certain actions, especially since their failure to do so may be due to a wide range of reasons."

[See also: CHIME asks for more prep time for Stage 2.]

The Premier health alliance, which has more than 2,600 hospital members, did not object to the proposed requirement for online access, however it recommended "the timeline not be described in terms of 36 hours post-discharge, but in terms of two business days post-discharge (that is, Monday through Friday, not including holidays). This would recognize that hospitals are not fully staffed during weekends and holidays, especially in terms of administrative and information technology staff. Also, a measure based on full days would be simpler than one based on hours post-discharge, since discharges can occur throughout the day, making for a potential compliance nightmare." Premier, however, called on CMS to issue the final stage 2 rule by August.