More organizations are releasing 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 to establish disincentives for information blocking by providers under the 21st Century Cures Act. 

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

The Electronic Health Record Association reiterated that providers currently engaged in the Merit-Based Incentive Payment System and Promoting Interoperability Program and accountable care organizations already utilize Certified EHR Technology, and likely adhere, "for the most part," with interoperability standards through their CMS program obligations. 

"Conversely, providers exempt or ineligible for these programs, such as small practices with PI exemptions, ambulatory surgical centers, long-term care facilities and laboratories, are less likely to have access to interoperable technology and consequently more likely to have challenges meeting requirements for exchange," the EHR Association said its December 20 comment letter released this week. 

Incorporation of info blocking disincentives into other Centers for Medicare & Medicaid Services Innovation programs might also impact small practices and require additional consideration for the final rule, EHRA noted.

"Distinct disincentives tailored to each category may be needed for providers outside of this scope."

Also, EHRA said the proposed rule "will do little to convince those who are reticent to embrace information sharing as a foundational strategy for their organization," arguing that "some may find that they are not motivated to change behaviors based on the proposed financial impacts."

With compliance based on active participation in a connected health data environment, EHRA suggested that the proposed disincentives rule focusing on CEHRT users only "appears contradictory to ONC's prior emphasis that all providers should engage in information sharing, irrespective of their use of CEHRT." 

The organization is asking ONC to analyze information blocking complaints received to date to determine if providers fall within the scope of proposed disincentives. 

"The goals of the program will be jeopardized if an appropriate breadth of providers do not have sufficient incentive to refrain from information blocking," EHRA said.

Calling for a finer approach

EHRA also noted that asks of its developer members by investigators at the U.S. Health and Human Services may be out of context, since they are not always responsible for configuring or monitoring the usage of certain certified health IT features within an organization involved.

The organization requested that evidence related to system configuration and usage "be directed to the healthcare organization responsible for those settings." 

Meanwhile, the Health Information Management Systems Society, parent company of Healthcare IT News, said in its comment letter released Tuesday that, while specific reactions to the proposed hospital, provider and ACO disincentives for information blocking were varied across its membership, it is recommending info blocking regulators take a tiered approach.

"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 healthcare technology member organization said.

HIMSS said the approach would allow providers "acting in good faith to take corrective action and not lose their incentive payments."

Costs could hurt some providers, including physicians

The American Hospital Association called ONC's info blocking disincentives excessive and told the agency that it could threaten the financial stability of already economically challenged hospitals.

"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," the hospital organization said in its comments.

HIMSS acknowledged a "widespread perception" that succeeding in the MIPS program "costs more than the incentive payments provide."

The redundancy of the financial disincentives with existing disincentives associated with failing to meet the current requirements for PI and MIPS is a concern for other HIMSS members, the organization said.

"Many HIMSS members are concerned that, at a moment of time where there have been significant changes to the regulatory environment for healthcare, the additional layer of complexity and potential cost could drive providers out of Medicare incentive programs instead of promoting interoperable exchange of information."

The Medical Group Management Association also said ONC's proposed rules add undue financial burden and would affect the delivery of Medicare and value-based care.

"The substantial administrative burden and difficulties medical groups face under the MIPS program will be exacerbated should the agencies move forward with this penalty," MGMA said.

On the other hand, like EHRA, HIMSS noted that some segments of its membership fear that penalties for smaller practices are "not significant enough to change information blocking behavior, particularly if there was a business case for that actor to participate in information blocking."

However, ACR suggested that CMS leverage enforcement discretion to "hold harmless" providers for first-time violations with warning and compliance support in its comment letter.

Individual physicians rarely influence data-sharing policies, "thus should rarely be a priority target for information blocking investigations and disincentives," ACR argued.

Proposed exceptions to information blocking in ONC's proposed disincentives rule require significant training, industry and policy experts say, and each info blocking referral investigated will require OIG to disentangle which developers and providers of certified health IT have accountability.

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