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Comments on the Electronic Health Record Incentive Program

March 15, 2010


Author(s):  Geoffrey Hale, Empire Justice Center; Trilby de Jung, Empire Justice Center, Lisa Sbrana, Legal Aid Society, Imtiaz Yakub, Intern Legal Aid Society

File Code:  CMS-0033-P (Medicare and Medicaid Programs; Electronic Health Record Incentive Program)

RE:  Comments from Consumer and Patient Organizations on the Proposed rule Detailing Incentive Payments for the Meaningful Use of Certified EHR Technology.

Thank you for the opportunity to comment on the new rules detailing incentive payments for the meaningful use of certified Electronic Health Record (EHR) technology.  We welcome the opportunity to offer our responses to these important incentives and to provide input from the perspective of our clients, most of whom are low-income beneficiaries of the Medicare and Medicaid programs.  We submit these comments on behalf of Empire Justice, and the Legal Aid Society.

Empire Justice is a statewide, multi-issue, multi-strategy public interest law firm focused on changing the “systems” within which poor and low income families live.  For more than 30 years, our advocates have worked to protect, preserve and improve the legal rights for poor and low-income New Yorkers struggling to meet their most basic needs.  Our work focuses on a full spectrum of poverty law, including public assistance, child care, food stamps, Medicaid, housing, domestic violence, disability benefits, civil rights and consumer law, including predatory lending, community investment and bankruptcy.

Founded in 1876, The Legal Aid Society is the oldest not-for-profit provider of free legal services in the US. The Society represents vulnerable children and adults throughout New York City in more than 300,000 civil, juvenile rights and criminal cases each year. The Society's Civil Practice provides direct legal services to individuals and families in the five boroughs to obtain and maintain the basic necessities of life including housing, health care, food, and subsistence income.  In addition to the provision of legal services, the Society seeks to improve government policies through law reform litigation, expert and technical assistance to legislators and training and assistance for our peer legal services providers and community groups.


The proposed rules governing the Meaningful Use of EHR technology promise significant improvements to the health care system.  They will improve patient access to health information and allow patients to be more directly involved in their own care.  The rules will also facilitate communication among providers, allowing patients to access more integrated and coordinated care.  In this way, the rules should improve the over-all quality of care, and dramatically improve patients’ experience with the healthcare system. 

We realize that the rules as proposed represent a careful balancing of the need to improve quality, safety and patient engagement without unduly burdening providers and hospitals.  Overall, we support the direction the Center for Medicare and Medicaid Services (CMS) is taking with its definition of meaningful use and urge you to maintain the mandatory criteria, particularly those in the Privacy & Security and Patient Engagement categories. 

The proposed rules could go further, however, in harnessing health information technology to better connect low-income patients and families to the health care system and better connect patient information across providers.  We would like to see the rules function more proactively, as a means of incentivizing providers to both inform and educate their patients, as well as coordinate care.  We also believe the rules should be modified to capitalize on the opportunity EHR technology presents for collecting data relevant to health care disparities, as well as data drawn from consumer input, in order to shine much needed light on patient-centric aspects of care quality.  Finally, we are concerned that the proposed rule, as written, may not sufficiently incentivize Medicaid providers to participate.

These issues are discussed in greater detail below.  

I.   Communication and Coordination

A.     Communicating with Patients

Implementation of EHR technology offers a unique opportunity to inform and educate patients in a way that facilitates their involvement in their health care and improves clinical outcomes.  To maximize the opportunity for patients to learn what is most critical about their own health needs, and then act upon that information in a proactive way, all patients should be offered access to their EHR, rather than making access to information subject to patient request (§495.6(e)(4)).

Patients will need educational resources in order to place their personal health information in context and understand the choices available.  Systems that provide patient specific information through well-vetted content providers such as Medline already exist, and could easily be linked to a patient’s own records.  For these reasons, we feel that the decision to exclude patient education resources from the proposed rule (Preamble Section II.A.2.d) is a mistake.  The inclusion of patient resources in EHR would help ensure that patients receive accurate, safe, and reliable information relevant to their individual health needs.    

Timing is also important in maximizing the value of EHR information to patients.  Access to information from the EHR should be offered to patients immediately after they receive services.  When services are provided in an out-patient setting, all patients should be offered access to clinical summaries prior to leaving the office.  When services are provided by hospitals, patients should be offered access to discharge instructions prior to leaving the hospital. 

For those patients who request their EHR outside the context of an office visit or hospitalization, providers should respond in a timely manner.  One of the largest benefits of EHR is the ease with which it can be accessed and disseminated to both patients and other providers.  We strongly support CMS’ decision to establish a time frame of 48 hours when a patient requests a copy of their medical information under the Health Information and Patient Protection Act (HIPPA) (§495.6(d)(5)(ii)), §495.6(e)(3)(ii)).  We feel similar requirements should apply to requests for EHR information.  We urge CMS to consider decreasing the lag time for these situations from 96 to 48 hours.  (§495.6(d)(6)).   Ultimately, electronic access to EHR should be ongoing and available in real time in order to afford patients the opportunity to engage fully in their health care. 

Finally, in order to ensure that all patients can make use of access to information from their EHR, printed formats must be made available.  Low-income, immigrant, elderly, and other vulnerable groups tend to have limited access to the Internet.  Without a paper option, health information technology could actually worsen existing disparities in health care for vulnerable groups, an unintended consequence that must be avoided at all costs.  As is discussed further below (Provider to Provider Communication and Coordination), low-income patients should never be charged for paper copies of the EHR.

Similarly, it is critically important to make information from the EHR available in languages other than English.  The proposed rules already require providers to collect information about a patient’s preferred language (§ 495.6(c)(5)).  The incentives should take the next logical step and require providers to make relevant information from the EHR available to patients in their preferred language.  Glossaries of medical terminology in non-English languages should be part of the EHR system at its inception.  If the system is capable of generating documents in just Spanish, Chinese, Vietnamese, and Russian, it would cover about 80-85% of the languages encountered among low-income patients.

Ideally, the EHR system should allow a patient, at the first point of contact, to identify the language he or she speaks (as well as the language in which he or she wishes to receive written documents  - because these are not always the same), and input information in the preferred language. The language preference indicator would come up each time the patient accesses the system or is contacted or sent documents by the provider.  At a minimum, EHR technology should allow for computer translation of discharge and medication instructions.

     B.      Communication and Coordination between Providers

Adoption of EHR technology promises to address one of the most serious needs in the health care system today by providing an effective means to ensure communication between providers.  With effective communication between providers, we can hope to truly coordinate care, eliminate conflicting diagnoses, reduce medical errors and duplicative tests, and eliminate conflicting treatment regimens.  This need is especially pronounced for those low-income Medicaid beneficiaries who also qualify for Medicare – the dual eligibles.  Not only do dual eligibles tend to have much higher rates of chronic conditions in need of careful attention and monitoring, but they tend to suffer at much higher rates from multiple conditions requiring coordination of their complex care needs. 

The specific provider communication requirements in the proposed rules make significant headway in improving care coordination.  We strongly support the recording requirements in §495.6(c), as well as the requirement that eligible providers and hospitals perform medication reconciliation at relevant encounters and each transition of care, and provide summary care records for each transition of care or referral (§495.6(c)(13)).

In addition, we suggest several modifications of the proposed rules to help ensure that data-sharing among providers is effective in meeting patients’ needs:

Eliminating Costs Charged to Patients for Sharing the EHR.  EHR technology presents an opportunity to eliminate costs that have been incurred by patients who need copies of their health records in order to apply for benefits or change providers.  At present, when patients request a provider to forward their health record to another provider or an agency charged with determining eligibility for a benefit, the patient is often charged a fee for copying and mailing these paper records.   The cost of electronic transmission is nominal compared to exchanging paper records, and we recommend that CMS include measures that prevent providers from charging for copying and mailing when the information is transmitted electronically.

Testing Data Sharing Processes.  We support the requirement that eligible providers and hospitals test their EHR system’s capacity to electronically exchange key clinical information.  §495.6(d)(8)(ii), §495.6(e)(5)(ii).  However, in order to ensure the effective coordination of records, it is important that these tests be successful.  CMS should therefore raise the threshold from one successful test to a higher number of successful exchanges. 

Patient Initiated Corrections.  The goal of providing patients with electronic access to their health information is to enable them to be fully engaged in the management of their health care. Patients themselves are a valuable source of information about their own medical histories. 

The rule should include measures that would establish a standard procedure for patients to provide information for and/or correct errors in their health record by contacting their provider.  Instructions on updating patient records should be included in any health information disseminated to patients and updates or corrections by patients should be immediately available to all providers associated with the patient’s care. 

II.   Data Collection

     A.     Data Related to Disparities

We strongly endorse the requirement that providers and hospitals record patient demographic data, including race, ethnicity, preferred language, and gender.  (§495.6(c)(5)).  We also encourage CMS to maintain the 80% reporting threshold in order to support efforts to better understand disparities based upon these factors.

In order for this data to effectively improve patient care, however, the rule should require some analysis of the data collected.  While we support the requirement that providers and hospitals generate lists of patients by specific conditions for use in for reduction of disparities, we would urge you to be more specific and require that such lists be stratified by race, ethnicity, preferred language and gender (§495.6(c)(9)).

We also encourage CMS to include a requirement that eligible providers and hospitals report a demographic profile of their patients.  Not only could this data be useful in monitoring the effectiveness of the proposed EHR incentives and their impact on vulnerable populations, but this rich database could provide an invaluable resource to increase our understanding of the healthcare system across a broad and diverse base of consumers.  Finally, we urge CMS to maximize access to the resource such data would represent by developing systems for making reports of the data collected under the EHR incentive program publicly available. 

     B.     Data on Patient Experience

EHR technology provides us with an opportunity to lay the groundwork for a data base of patient experiences with health information technology.  Patients will be the ultimate judge of whether or not EHR technology is being used to advance patient-centered care.  If patients do not notice a difference or are unhappy with the changes they do notice, the program will have failed in a very significant aspect. 

In fact, EHR technology affords the opportunity to lay the groundwork for a broader database of patient experience.  With the proper design, EHR technology can begin to gather data about patient experience of care coordination across a variety of care models and even payers.  At a minimum, we believe patient and caregiver email addresses should be an element of the patient demographic data collection requirement (§495.6(c)(5)(i)).  We also recommend that providers and hospitals be required to attest to the percentage of their patients that have been asked about their experience of care, and document the number of EHRs that have included this critical data. 

III.   Ensuring Full Participation by Medicaid Providers

Creating equitable access to the EHR requires equal incentives for all providers to adopt the provisions.  For this reason, requirements imposed under the incentive provisions should impact Medicaid and Medicare providers equally.  Failure to treat the benefits programs similarly risks increasing disparities among beneficiaries. 

Under the proposed rules, however, it appears that Medicaid providers and hospitals that qualify for incentive payments in their first year by adopting, implementing or upgrading certified EHR technology are not afforded the same flexibility as Medicare providers and hospitals in their second year.  It appears that on the Medicaid side, providers and hospitals will be required to demonstrate meaningful use for the full year rather than 90 days, even though their first year demonstrating meaningful use will be subject to the same criteria as Medicare providers (§495.4).  In addition, this requirement is inconsistent with the intent expressed in Section II.A.2.C of the preamble, that “Medicaid EPs and eligible hospitals who qualify for an incentive payment for adopting, implementing, or upgrading in their first payment year would follow the same meaningful use progression outlined below as if their second payment year was their first payment year.” 

We, therefore, recommend granting eligible Medicaid providers and hospitals the same 90-day reporting period in their second payment year when it is the first year they are responsible for meeting the meaningful use criteria.

Further, the success of the Medicaid incentive program will depend upon the support provided to states.  Even though states will receive a 90% match under the proposed rule (§495.322), the Medicaid provisions rely on states to expend scarce resources in order to benefit from the incentives.  The New York State economy is in particularly dire straits.  With a projected budget deficit of $8.2 billion, the governor and legislature seem more interested in finding ways to cut spending rather than to incur additional costs.  In the current budgetary situation, even 10% might be more than New York can afford.  We recommend that CMS monitor the number of states that decline to participate in the Medicaid incentive program because of cost, and consider recommending changes to the reimbursement formula to mirror federal coverage of expenses under the Medicare program (100%).

In sum, as advocates for low-income consumers, we are excited about the opportunity to help shape the new rules regarding the meaningful use of EHR.  The EHR incentive program has the potential to significantly advance the goal of creating a patient-centered health care system, a system that would truly facilitate effective communication between patients and providers, allow patients to become active participants in their own care, coordinate care and reduce existing disparities in the healthcare system.  Although the proposed incentives focus primarily on requirements for providers and hospitals, the resulting changes should have a dramatic impact on the experiences of consumers.  Ultimately, the success of EHR depends upon the responsiveness of the new technology to patient needs. 

Thank you for the opportunity to comment.


Trilby de Jung
Empire Justice Center


Lisa Sbrana
Legal Aid Society