Two healthcare provider groups, the American Hospital Association and the Medical Group Management Association, have both responded critically to the Department of Health and Human Services' just-released final rule on information blocking disincentives.

In separate statements on Monday, AHA and MGMA said they're "disappointed" that the HHS finalized substantial new penalties for covered entities it determines have interfered with the access, exchange or use of electronic health information.

While both organizations have long said they support information blocking rules governing the interoperability of patient health information, they have been concerned that outsized penalties could negatively impact practices, accountable care organizations and Medicare patients.

WHY IT MATTERS

Medical groups already face reporting challenges under the Merit-Based Incentive Payment System, according to the MGMA, which has 15,000 group medical practice members ranging from small private medical practices to large national health systems employing 350,000 physicians.

"By enforcing a penalty of zero points in the Promoting Interoperability category, this rule ensures that offending groups will likely receive a negative payment adjustment to every Medicare claim for an entire payment year," the Medical Group Management Association said in its reaction statement on Monday.

Any provider found to have committed information blocking will be given a score of zero for the MIPS Promoting Interoperability requirement, which puts their revenue at risk.

"Consequently, the healthcare provider may not receive revenue that they might otherwise have earned through the Shared Savings Program," HHS said in its announcement about the final rule.

Some exceptions would allow providers to deny a request for access to EHI that would not trigger a penalty. Understanding them well enough, however, requires providers to have significant training, industry experts have said since the proposed rule was made available for public comment late last year.

MGMA and AHA have called for education and resources to guide providers in avoiding costly missteps in navigating the complexity of the exceptions. In April, ONC released a fact sheet to help explain the exceptions and previously held webinars about information-sharing exceptions.

Untangling which developers and providers of certified health IT have accountability in an info-blocking referral investigation could also create complexity for HHS's Office of the Inspector General. 

But, if an OIG investigation finds that individuals or entities committed information blocking, it could earn affected providers civil monetary penalties of up to $1 million per violation, according to a statement from the American Medical Association in February.

"Providers in accountable care organizations that commit information blocking would be ineligible to participate in the Medicare Shared Savings program for at least one year and may not receive revenue they may have earned through the program," the AHA said in today's reaction. 

The disincentives, with their narrow focus, will do little to support broader interoperability and greater health information access, according to the Electronic Health Record Association. 

"HHS remained focused in this final rule only on certified health IT users, leaving out a significant list of other stakeholders, such as labs and providers who don’t participate in MIPS but are nonetheless central to healthcare information exchange," said Leigh Burchell with Altera Digital Health, vice chair of the EHRA Information Blocking Compliance Task Force. 

"A more inclusive approach to disincentives could motivate a wider range of healthcare providers to embrace information sharing best practices." 

Both ONC and CMS will need to step up on conducting education on the final regulation, she added.

"It is clear that the number one obstacle to compliance at the moment is a lack of awareness of the requirements amongst hospitals and physician practices."

The final rule takes effect 30 days after publication in the Federal Register on June 24.

THE LARGER TREND

Disincentives are largely aimed at providers participating in CMS programs, which some organizations like the American College of Radiology say is the appropriate mechanism for provider disincentives.

However, providers engaged in the MIPS and Promoting Interoperability Program and accountable care organizations already adhere to the interoperability requirements of certified EHR technology through their CMS program obligations, the Electronic Health Record Association said in its comments to the agency.

In January, several organizations, including MGMA and EHRA, released their comments to the Office of the National Coordinator for Health Information Technology, Centers for Medicare & Medicaid Services and Office of the Inspector General on the proposed federal rule. 

They asked for a tailored approach to interoperability disincentives, which are required under the 21st Century Cures Act. 

"CMS could consider issuing the disincentive as a negative payment adjustment for the first offense, and then provide education and resources on how to be compliant with information sharing requirements in lieu of posting the party on the information blocking website," the Health Information Management Systems Society, parent company of Healthcare IT News, said in its comments.

ON THE RECORD

"HHS could have chosen to work with providers to implement corrective action plans, but instead finalized unnecessarily punitive penalties that will financially damage practices and negatively impact Medicare patients," MGMA said in a statement.

"AHA is disappointed that HHS chose to disregard most of the comments they received and is highly concerned that the disincentive structure retained in the final rule is excessive, confusing and imbalanced," the organization said in a separate statement.

Andrea Fox is senior editor of Healthcare IT News.
Email: afox@himss.org
Healthcare IT News is a HIMSS Media publication.