More Stakeholders Weigh in on Information-Blocking Disincentives

Jan. 11, 2024
Civitas: Disincentives’ structure suggests that HHS regards most information blocking as isolated incidents rather than deliberate strategy

Last week, the Medical Group Management Association (MGMA) suggested that federal regulators use corrective action plans and education to remedy information-blocking allegations instead of significant financial penalties. Now other stakeholders, including the EHR Association and Civitas Networks for Health, have weighed in with their concerns and suggestions for improving the final rule. 

Information blocking is when a provider knowingly and unreasonably interferes with the access, exchange, or use of electronic health information except as required by law or covered by a regulatory exception.

The Office of the National Coordinator for Health Information Technology (ONC) and the Centers for Medicare and Medicaid Services’ (CMS) have proposed to establish disincentives for providers who commit information blocking under the 21st Century Cures Act.

The EHR Association noted that the proposed focus on disincentives only for users of certified EHR technology “appears contradictory to ONC's prior emphasis that all providers should engage in information sharing, irrespective of their use of CEHRT” and suggests that ONC conduct an analysis to determine how many information-blocking complaints received to date pertain to providers falling within the scope of disincentives outlined in this proposal. “Distinct disincentives tailored to each category may be needed for providers outside of this scope.”

The EHR Association added that “the suggestion that only those who participate in the PI [Promoting Interoperability], MIPS, and ACO programs would be subject to disincentives would leave out eligible providers who choose not to participate and even some who do but are indifferent to missing an incentive payment. Compliance with information blocking regulations is based in part on organizations’ commitments to active participation in a connected health data environment, and some may find that they are not motivated to change behaviors based on the proposed financial impacts.”

While the EHR Association said it recognizes that HHS felt limited in its legal authority to consider other approaches, it is “concerned that the current framework will do little to convince those who are reticent to embrace information sharing as a foundational strategy for their organization.”

In a letter to ONC, Civitas Networks for Health CEO Lisa Bari said her organization’s main concern is that the proposals “are not sufficient to address the gravity of the issue, given the continued pervasiveness of information blocking and the imperative to address it as comprehensively as possible if ONC’s vision of wide-reaching interoperability and patient access is to be realized.”

Civitas, whose members include health information exchanges and health data utilities, noted that the reimbursement rates for acute care hospitals and critical access hospitals in question would only be “downward adjusted” for lack of meaningful use as a consequence of information blocking once per EHR reporting period per calendar year, regardless of how many instances of information blocking HHS-OIG actually documents during that period. Similarly, MIPS clinicians and practice groups could commit multiple violations within the scope of an OIG determination and referral to CMS for a single performance period during one calendar year and would only suffer a single MIPS scoring penalty for that year.

“The structure of these disincentives as written would seem to suggest that HHS regards most information blocking as one-off mistakes or isolated incidents removed from providers’ decision-making, rather than deliberate and systematic attempts to limit access to otherwise shareable data,” Civitas said. 

“ONC’s own Health Information Organization National survey results attest to this reality for HIEs, 45 percent of whom reported that healthcare providers are engaged in blocking as a policy choice through “strategic affiliations” with other health systems, and 25 percent of whom said that providers use transparently “artificial” technical or process barriers to put off exchange and undermine interoperability," Bari’s letter stated. “Another 40 percent of survey respondents described outright ‘refusals to exchange patient information.’ The Proposed Rule’s intention to effectively cap disincentive applications to single instances within the relevant reporting and payment windows without carrying forward penalties for serial violations may not meaningfully affect the calculations of the worst violators.”

 

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