This is the fourth post in Health Care Law Today’s series on the proposed rule revising the Medicare Shared Savings Program. The rule was published in the Federal Register on December 8, 2014 and parties have 60 days to offer comments.  Click here to read earlier posts about the rule. This post addresses the changes that CMS proposes concerning sharing of beneficiary identifiable data.

CMS may be ready to ramp up the data it is willing to share with Accountable Care Organizations (“ACOs”) that participate in the Medicare Shared Savings Program (“MSSP”).

CMS explained in the November 2011 final rule that it expects participating ACOs to identify and produce the data they believe necessary to evaluate the health needs of their patient population, improve health outcomes, monitor provider/supplier quality of care and patient experiences, and produce efficiencies in utilization of services. In the proposed rule, CMS reiterates its expectation that ACOs should be developing and refining these processes.

Recognizing that ACOs do not have access to information for care provided to their assigned beneficiaries by health care providers and suppliers outside of the ACO, CMS agreed in the Final Rule to 1) distribute aggregate-level data reports to ACOs, and 2) share upon request limited identifying information about beneficiaries who are preliminarily prospectively assigned to the ACO and whose information serves as the basis for the aggregate reports.

In the current process, an ACO can request to receive beneficiary identifiable information in its application to the MSSP. If the ACO meets certain conditions (i.e., it certifies that the requested data reflects the minimum necessary information for the ACO to conduct health care operations and it enters a data use agreement with CMS), CMS will make available limited PHI about preliminarily prospectively assigned beneficiaries. To enhance transparency and beneficiary engagement, CMS required in the final rule that ACOs give beneficiaries the opportunity to decline data sharing before they can start to receive protected health information.

Critics, including the American Hospital Association, had complained that the final rule should be revised to allow for more data sharing. CMS states in the proposed rule its belief that the data it currently provides to ACOs remains useful to the ACO’s ability to improve care coordination, and that such data allows ACOs to identify and address gaps in patient care. However, CMS also recognizes that it can improve its data sharing policies and processes to streamline access to such data. Thus, CMS proposes to expand the information made available to ACOs to include certain beneficiary identifiable data in addition to what is already provided (name, date of birth, HICN, and sex).

Sharing More Data for More Beneficiaries Under the Proposed Rule

First, CMS proposes to expand the class of individuals for whom name, date of birth, HICN, and sex is provided beyond beneficiaries who are preliminarily prospectively assigned to the ACO to also include any beneficiary who “has a primary care service visit with an ACO participant that bills for primary care services that are considered in the assignment process in the most recent 12-month period.” This change would help ACOs get data for those beneficiaries who may be assigned during retrospective reconciliation. The proposed rule offers data for this expanded class only to ACOs in tracks 1 and 2 (because of the possibility of reconciliation), and not to ACOs in the new track 3 (where there is only prospective assignment).

Second, CMS proposes to expand the types of beneficiary identifiable information made available for preliminarily prospectively assigned beneficiaries to include:

  • Demographic data such as enrollment status;
  • Health status information such as risk profile and chronic condition subgroup;
  • Utilization rates of Medicare services such as the use of evaluation and management, hospital, emergency, and post-acute services, including dates and place of service; and
  • Expenditure information related to utilization of services.

CMS believes this additional information will help ACOs evaluate provider and supplier performance, coordinate care, and conduct population-based activities related to improving health.

Streamlining the Opt-out Process Under the Proposed Rule

Under the current rule, ACOs must notify each beneficiary of the opportunity to decline data sharing when the beneficiary has his or her first visit with an ACO participant, and if ACOs wish to receive beneficiary data before the beneficiary’s first visit, they must mail a notification that offers prospectively assigned beneficiaries the chance to opt out by mail or telephone. Only after a 30-day waiting period meant to give beneficiaries time to respond can ACOs receive access to the beneficiary’s data.

CMS proposes to eliminate the requirement that the ACO mail the opt-out notification. CMS explained that stakeholder feedback indicated that the mail notification created confusion and annoyance for beneficiaries. Instead of relying on mail notice, CMS will provide advance notice to all beneficiaries about the opportunity to opt out of data sharing through CMS materials, such as the Medicare & You Handbook. Participants can opt out by calling 1-800-MEDICARE. ACO participants still must notify beneficiaries at the point of care that their providers and suppliers are participating in the MSSP, post signs in their facilities, and, upon their request, provide beneficiaries with a separate written notification to take home. Those notifications must use CMS written templates, which include instructions for opting out of data sharing.

Request for Comments

As it does broadly throughout the proposed rule, CMS requests comments on all these changes. One area of particular interest for commenters may be the categories of additional beneficiary identifiable information that CMS proposes to provide and whether other sorts of information should be added to that list.