On December 8, 2014, the U.S. Department of Health and Human Services (“HHS”) issued a proposed rule related to changes to the Medicare Shared Savings Program.  These revisions promote the use of electronic health records by Accountable Care Organizations (“ACOs”) that participate in the Shared Savings Program and expand the patient information that will be shared with those ACOs.  Comments on HHS’s proposed rule are due by February 6, 2015.   

The Medicare Shared Savings Program promotes the accountability for a patient population, fosters coordination of service and encourages the development of infrastructure and redesigned care processes to improve the quality and efficiency of care.  In November 2011, HHS issued final regulations implementing the Shared Savings Program.  Its recent proposed rule is meant to leverage the knowledge that it has gained since 2011 to refine various aspects of the program.  While the proposed revisions to the program span a broad range of topics, two areas implicate the privacy and sharing of patient data.

First, ACOs are required to coordinate patient care through the use of telehealth, remote patient monitoring and other technologies.  In the proposed rule, HHS explains that the adoption of health information technology is important for supporting care coordination across heath care providers.  HHS also emphasized its commitment to the advancement of the health information exchange (“HIE”) through the use of electronic health records (“EHR”) and other types of health information technology (“HIT”) across the continuum of care.  These initiatives include: (1) the alignment of incentives and payment adjustments to encourage provider adoption and optimization of HIT and HIE services through Medicare and Medicaid payment policies, (2) the adoption of common standards and certification requirements for interoperable HIT, (3) support for privacy and security of patient information across all HIE-focused initiatives, and (4) governance of health information networks.  To further these goals, HHS proposes requiring Shared Savings Program applicants to provide, as part of their applications, plans for improving care coordination by developing, encouraging and using enabling technologies and EHR to make health information electronically available to all practitioners involved in a beneficiary’s care.  HHS also proposes an amendment requiring the ACOs to define and submit performance targets to evaluate its their progress in meeting these objectives.

Second, HHS previously had concluded that it was beneficial to the coordination of patient care to share certain beneficiary identifiable information with ACOs and that it was permissible under HIPAA to do so.  It has now proposed broadening the scope of the patient information that will be shared with ACOs to include not only the beneficiary’s name, date of birth, health insurance claim number and sex but also (1) demographic data such as enrollment status, (2) health status information such as risk profile and chronic condition subgroup, (3) utilization rates of Medicare services, and (4) expenditure information related to utilization of services.  HHS also proposes changes to (1) when an ACO first has the right to have data shared with it, and (2) a beneficiary’s ability to opt out of certain forms of data sharing.

The HHS proposed rule is available here.  Comments can be submitted here.