Medicare and Medicaid Programs; Patient Protection and Affordable Care Act; Interoperability and Patient Access for Medicare Advantage Organizations and Medicaid Managed Care Plans, State Medicaid Agencies, CHIP Agencies and CHIP Managed Care Entities, Issuers of Qualified Health Plans on the Federally-Facilitated Exchanges, and Health Care Providers
Agency: "
SUMMARY: This notification is to inform the public that CMS is exercising its discretion in how it enforces the payer-to-payer data exchange provisions. As a matter of enforcement discretion, CMS does not expect to take action to enforce compliance with these specific provisions until we are able to address certain implementation challenges.
DATES: The notification of enforcement discretion is effective on
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION: On
* MA organizations (42 CFR 422.119(f)); or
* Medicaid managed care plans (42 CFR 438.62(b)(1)(vi)); and CHIP managed care entities (42 CFR 457.1216).
For plan or policy years beginning on or after
To provide payers with flexibility to support timely adoption and rapid implementation, CMS did not require an application programming interface (API) or any a specific mechanism for the payer-to-payer data exchange. Rather, we required impacted payers to receive data in whatever format it was sent and to send data in the form and format it was received, which ultimately complicated implementation by requiring payers to accept data in different formats.
Since the rule was finalized in
After listening to stakeholder concerns about implementing the payer-to-payer data exchange requirement and considering the potential for negative outcomes that impede, rather than support, interoperable payer-to-payer data exchange, CMS published three frequently asked questions (FAQs) on the CMS and HHS Good Guidance websites /1/ to announce that it would be exercising enforcement discretion for the payer-to-payer data exchange requirement. In one of the FAQs, CMS encouraged payers that have already developed FHIR-based application API solutions to support the payer-to-payer data exchange to continue to move forward with implementation. The FAQ noted that for those impacted payers that are not capable of making the data available in a FHIR-based format, we believed that this policy of exercising enforcement discretion would alleviate industry tension regarding implementation; avoid the risk of discordant, non-standard data flowing between payers; provide time for data standards to mature further; and allow payers additional time to implement the more sophisticated payer-to-payer data exchange solutions. We are now announcing that we expect to extend this exercise of enforcement discretion of the payer-to-payer data exchange requirement until we are able to address the identified implementation challenges through future rulemaking. We anticipate providing an update on any evaluation of this enforcement discretion notification and related actions during calendar year 2022. We continue to encourage impacted payers that have already developed FHIR-based API solutions to support payer-to-payer data exchange to continue to move forward with implementation and make this functionality available on
FOOTNOTE 1 Link to CMS website with FAQs for interoperability rule, and enforcement discretion: https://www.cms.gov/about-cms/health-informatics-and-interoperability-group/faqs#122. END FOOTNOTE
While the policy in this notification may result in temporary delay of some enrollees' ability to bring their data with them from one payer to the next, we believe this decision could ultimately lead to more standardization and cohesion of data about enrollees as CMS provides additional implementation guidance through future rulemaking.
Finally, our decision to exercise enforcement discretion for the payer-to-payer policy until future rulemaking is finalized does not affect any other existing regulatory requirements and implementation timelines finalized in the CMS Interoperability and Patient Access rule finalized on
Dated:
Secretary,
Notification of enforcement discretion.
CFR Part: "42 CFR Parts 422, 431, 435, 438, 440, and 457"
Citation: "86 FR 70412"
Document Number: "CMS-9115-N2"
Federal Register Page Number: "70412"
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