The American Hospital Association had four areas of comments for the Centers for Medicare & Medicaid Services and the Office of the National Coordinator for Health Information Technology on the proposed federal rule to establish disincentives for providers found to have committed information blocking under the 21st Century Cures Act.

WHY IT MATTERS
According to AHA's comments in Tuesday's letter, "it appears that CMS and ONC underestimated the real financial impact of a 75% decrease in yearly market basket updates for [Inpatient Prospective Payment System] hospitals and a one percentage point reduction in the reimbursement" for Critical Access Hospitals.

As the letter proceeds to break down the organization's comments on the draft, it begins in explaining its alarm at the potential financial fallout by starting with the guiding 2016-era healthcare legislation itself

The CURES Act, according to AHA "does not compel the Department of Health and Human Services to designate CMS as the appropriate agency and, by extension, Medicare reimbursement, as a vehicle for monetary disincentives."

The organization said that, by its calculations, the disincentive structure outlined in the proposed rule is so excessive, "that it may threaten the financial viability of economically fragile hospitals, including many small and rural hospitals," AHA said.

Member hospitals tested the estimated median disincentive amount of $394,353 and range of $30,406 to $2,430,766 across eligible hospitals, which CMS and ONC set, and said its impacts would be far greater.

"Using the formula described in this scenario, several of AHA’s members estimated what their own penalties might be and found that the impact could be more than three times the upper level number quoted in the range published in the rule, and an average impact that is nearly 10 times higher than median quoted in the rule," AHA said.

Instead of penalizing healthcare program reimbursements, the organization recommends using a table that's already set – "existing practices, such as referring enforcement of HIPAA violations to the Office of Civil Rights."  AHA noted, "there are already specific references to HIPAA." 

In addition, AHA said the proposed rules for Office of the Inspector General processes that would determine if information blocking has occurred appear "arbitrary and capricious. It's "unclear, including the appeals process," AHA said in its comments.

The agency basing the disincentives on variable aspects of provider payment would create an "unfair and confusing framework "in which disproportionate punishment could be levied for the same offense depending on the year of the offense and how long it takes for the violation to be referred to CMS."

Lastly, AHA noted that if finalized, the rules would be the program’s fourth update since 2019. 

THE LARGER TREND
As with a lot of regulations, the devil is in the details. Information blocking exceptions require special attention from providers. Healthcare IT News attended government and industry webinars during which policy and data privacy experts reviewed a significant level of details that providers must navigate quickly to avoid penalties.

"For those of us that were used to living under HIPAA, which permitted certain disclosures but didn't require them, in most cases, the information blocking rules will now require certain disclosures to decline to disclose information under the privacy exception," Jennifer Hennessy, data privacy attorney with Foley & Lardner, explained during a November webinar hosted by the American Telemedicine Association.

The Medical Group Management Association and the National Association of ACOs are also asking ONC for clarity, and made recommendations to ease the proposed disincentive burden for healthcare providers.

MGMA suggested a corrective action process that would provide a remedy to allegations of information blocking without the threat of financial penalties that dissuade providers from Medicare participation, while NAACOS asked for changes to the rule prohibiting participation in the Medicare Shared Savings Program if the ACO or its clinicians is found to be in noncompliance.

"Properly allowing providers to correct offending conduct by using education and guidance would best facilitate information sharing," said MGMA in its letter, also sent on Tuesday.

ON THE RECORD
"The AHA urges CMS and ONC not to finalize this disincentive structure," said the American Hospital Association in its letter on the proposed rule. "Should it move forward, we urge the agencies to verify their calculations and be transparent in publishing the specific formula used so that stakeholders can better understand the discrepancy between their impact numbers and those of the agencies."