Comments Regarding the Health Information Exchange Regulations

The Massachusetts Medical Society appreciates the opportunity to provide comment regarding the Health Information Exchange Regulations (101 CMR 20.00) proposed by the Executive Office of Health and Human Services. The Medical Society commends the office for their transparent and collaborative process over the past many months. The following testimony details our strong support for the Mass HIway consent regulations as proposed, and mixed comment regarding the EHR interoperability portion of the regulations.

Mass HIway Patient Consent

The Medical Society supports the proposed approach to patient consent for use of the Mass HIway. The thoughtful proposal would allow for 1) general HIPAA compliance to govern HIway direct messaging, and 2) a consent process for HIway sponsored services that allows patients to be opted-in through public notice with ability to opt-out through a centralized mechanism, and with flexibility of local participants to choose to implement further opt-in/opt-out procedures if they so choose. We support the much-needed flexibility that this proposal provides to local health information exchange administrators. We are pleased that it is consistent with MMS policy adopted by our members this past year, which includes a charge to, “…work with appropriate stakeholders to change the Massachusetts consent process for sharing health information to a simple opt-out process for patients who do not wish to share their health or medical information with other providers caring for them.”

We think the proposed Mass HIway privacy consent proposal that allows for patients to be opted in though public notice is paramount for the true uptake of the Mass HIway and local health information exchanges. We believe that his important policy change will allow for Mass HIway to reach the critical mass of participation by patients and physicians that will ultimately lead to a health information exchange consistent with what was imagined at initial conception and investment.

Interoperable EHR Mandate

While the Medical Society opposes the use of legislative mandates on physicians to promote pursuits such as interoperable electronic health records (EHRs), we acknowledge your charge of promulgating regulations to implement the legislation, and put forward the following comments for your consideration.

The Medical Society strongly supports the overall approach that lays out a stratified, phased-in framework that takes into account the size of the provider organization, and which phases in requirements for covered entities over four years. Health information technology, including the pursuit of EHR interoperability, is vastly growing expense for all providers and takes up a disproportionately high portion of overall budgets for smaller providers as economies of scale and market leverage play significant roles in capital health IT projects. Any deviation from the stratified, phased-in approach that is proposed could pose significant risk to access of care issues in the Commonwealth.

We request that the size of small medical ambulatory practice be defined in 20.06(3) be increased from under 10 providers to 15 providers or less, which provides consistency with the definition of small provider in MACRA. 

In addition, the Medical Society supports the administration’s interpretation of “provider” as a provider organization, as this approach comports with the appropriate organizational level that establishes health IT policy. It will also make administration of the process from the administration’s standpoint imminently more feasible.

MMS strongly opposes the idea that the use cases that define how a provider fulfills the definition of HIway use and interoperability can only be obtained by accessing Mass HIway through an electronic health record. If the intent of the law were to ensure that providers have EHRs and have the ability to communicate digital information over the secured Mass HIway health information exchange, then there should be flexibility to allow multiple avenues to pursue this end. We strongly support amending the regulation to allow for fulfillment of the Mass HIway use to be achieved via a web-based mail service rather than only directly from the EHR. We think the ultimate goal is to see Mass HIway to be used for productive means, as laid out by the “use cases” in the Mass HIway Policies and Procedures 2 - the means by which this is achieved should be flexible to allow individual provider organizations to select the best route for them and their patients.

While MMS hopes that many provider organizations find solutions to allow for HIway access to come directly through their EHR, the reality is that the cost and feasibility of this decision is largely at the mercy of the EHR vendor. Some vendors may not be able to provide access the HIway for the specific use cases, and, of even greater concern, many EHR vendors will continue to charge exorbitant prices to purchase these additional modules. Allowing for certain provider organizations to have an EHR and to have access to Mass HIway provider-to-provider communications through a webmail application on the same computer would fully support the intent of the law while allowing more flexibility for provider organizations. This could also help reduce the number of provider organizations seeking waivers. We note that the web-mail route was acknowledged by the administration as a means that should be considered, as it was included in several early iterations of the policy as a means by which to achieve the waiver. We strongly urge revision to the regulations to allow for interoperability to be achieve independently from the electronic health record.

Lastly, we urge revision to section 20.13 to provide flexibility to EOHHS to allow for fines up to the specified amount to allow lenience in exceptional circumstances.

The Medical Society strongly supports the thoughtful implementation of electronic health records, and agrees that secure communication between health records is essential. Many stakeholders play a part in allowing that to occur in a manner that promotes the best interests of patients. We thus urge flexibility in finalizing health information exchange regulations to allow multiple avenues to achieve this end.


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