Officials at the U.S. Department of Health and Human Services (HHS) today started a new war on patients' health record access nightmare with 251 pages of draft regulations.

Teams at two HHS units — the Centers for Medicare and Medicaid Services (CMS) and the HHS Office of the Secretary — are trying to push the health plans under HHS jurisdiction to make their computers work together better, and to shame providers that keep patient records locked up in an effort to hold on to patients.

If successful, the proposed regulations could help patients get their health records more easily, and reduce the need for patients with serious health problems to haul piles of paper records to every appointment.

In theory, the regulations could also make it easier for agents to move clients from one Medicare plan to another, by making Medicare Advantage plan records, and records at some private health insurance plans, less sticky.

The Motives

Many executives from U.S. information technology companies, including health IT companies, have talked in recent years about how problems with health record access have hurt them or their loved ones.

Neal Patterson, the late founder and chief executive officer of Cerner Corp., a giant, North Kansas City, Missouri-based health IT company, testified at a 2015 Senate hearing about how his own wife, Jeanne Lillig-Patterson, had to carry shopping bags full of medical records to the doctors who were trying to help her fight her breast cancer. Neal Patterson died of cancer in July 2017. Lillig-Patterson died of cancer in 2017.

Seema Verma, the CMS administrator, said last April, at a health data conference, that she had trouble getting complete records for her own husband, who suffered a heart attack in the summer of 2017, even though she was the CMS administrator.

All she could get was a five-page written summary and a CD-ROM that left out many key records, such as the results from an MRI.

The New Draft Regulations

In the preamble, or introduction, to the new draft regulations, HHS officials say they want to overcome at least some of the barriers that have blocked past "interoperability" efforts.

" We are committed to solving the issue of interoperability and achieving complete access to health information for patients in the United States (U.S.) health care system, and are taking an active approach to move participants in the health care market toward interoperability and the secure and timely exchange of health information," officials say in the preamble.

Here are seven more things for agents and brokers to know about the new draft regulations.

1. The Nuts and Bolts

CMS and the HHS Office of the Secretary developed the draft to implement the 21st Century Cures Act of 2019 and Executive Order 13813.

President Donald Trump issued Executive Order 13813 in October 2017. The order calls for the administration to "improve access to, and the quality of, information that Americans need to make informed health care decisions, including information about health care prices and outcomes, while minimizing reporting burdens on affected plans, providers, and payers."

The draft regulations are set to appear in the Federal Register — an official government publication — March 4.

Comments on the draft regulations will be due 60 days after the official Federal Register publication date.

The regulation lists Natalie Albright as the contact for issues related to Medicare Advantage; Emily Pedneau as the contact for issues related to "qualified health plans," or plans sold through the Affordable Care Act public exchange system; and Melissa Singer as the contact for issues related to provider directories.

2. The 'Payers' That Would, and Would Not, Be Directly Affected

For health IT purposes, HHS has direct jurisdiction only over federal, and federal-state, health care delivery and health insurance programs, such as Medicare, Medicaid, and HealthCare.gov, and health care providers' relationships with those programs.

State governments have jurisdiction over other "payers," and over providers overall operations.

Because of those restrictions, the payer rules proposed in the new draft regulations would have a direct effect only on:

  • Medicare Advantage plans.
  • Medicaid managed care plans.
  • State Medicaid agencies.
  • The Children's Health Insurance Program (CHIP).
  • Insurers  that issue "qualified health plans," or Affordable Care Act public exchange plans, through HealthCare.gov.

The traditional Medicare program already comes a separate, similar set of "Blue Button" patient record access program requirements.

HHS set up HealthCare.gov to provide ACA exchange program account setup and administration services for states that are unable or unwilling to provide all ACA public exchange services themselves.

Officials say in the preamble that they hope other health finance system players, including state-based ACA exchange programs and providers of private health insurance, will move voluntarily toward adopting the standards and rules described in the new regulations.

3. How the Draft Regulations Could Change the Rules for the Affected Payers

HHS officials want the new draft regulations to require the affected payers to make basic enrollee data available to the enrollees through a standardized "application programming interface," or API.

Health plans would have to use the API to share enrollee data with the enrollees.

To an enrollee, the API would be similar to the "Blue Button" health record system that the traditional Medicare program now uses: The enrollee could click on a button connected to the API and get health records.

The payer would have to provide information about any:

  • Fee-for-service claims that have already been processed, including how much was paid to the providers and how much the enrollee had to pay.
  • Patient encounters with health care providers who receive a flat monthly or annual fee for each patient served.
  • Clinical data, such as laboratory results, managed by the payer.

HHS officials also want payers, such as Medicare Advantage plans, to use the API data pipes to share enrollee data with other payers.

"We propose that a plan must, if asked by the beneficiary, forward his or her information to a new plan or other entity designated by the beneficiary for up to five years after the beneficiary has disenrolled with the plan," officials say.

For a HealthCare.gov plan enrollee, an issuer would have to give an enrollee online access to information about how much the plan is paying the provider, and how much the enrollee has to pay the provider, within one day after processing the provider's claim.

4. A New Sin: Health Care Provider 'Data Blocking'

HHS officials say they will try to deal with providers who engage in at least one common form of data blocking — failing to provide digital contact information in a key government provider directory — by publicly identifying the providers who have failed to send that digital contact information to the directory.

5. Cost Estimates

Officials predict that the cost of implementing the draft regulations would be only about $3.81 per commercial health plan enrollee over the five-year period starting in 2020.

The five-year cost for Medicare Advantage plan enrollees would be $4.08 per enrollee, officials estimate.

6. Reasons to Be Skeptical

HHS and private organizations have tried to improve U.S. health information system interoperability many times before.

HHS officials have included a history of federal efforts in that area in the preamble to the new draft regulations.

The new efforts will face many challenges, such as privacy concerns that have gotten in the way of providing every patient with a "unique patient identifier," and long-term care providers' delays in adopting and using standardized patient health information exchange systems, officials say.

7. Possible Effects on the Medicare Plan Market

If the regulations take effect as written and work as HHS officials hope, agents who help clients deal with health insurance claim problems could have any easier time getting claim information, especially for clients who have Medicare Advantage plan or HealthCare.gov coverage.

If payers really use the new API infrastructure to send enrollee data to other payers, agents could also have an easier time moving a Medicare Advantage plan enrollee to another Medicare Advantage plan, or shift a Medicare Advantage plan enrollee into a combination of traditional Medicare coverage with a Medicare supplement insurance plans.

Officials do not discuss life insurance or other medically underwritten products in the preamble to the draft regulations, but the API could also make it easier for clients to share their health records with life insurance, disability insurance or long-term care insurance underwriters.

Resources

A copy of the proposed regulations is available here.

— Read Intel Executive: Let My Health Records Go, on ThinkAdvisor.

— Connect with ThinkAdvisor Life/Health on LinkedIn and Twitter.