- Provider groups are pushing back on a long-awaited disincentive proposal for clinicians and hospitals who block the free flow of electronic health information.
- In letters published last week, the American Hospital Association, the National Association of Accountable Care Organizations and the Medical Group Management Association posted comments on the proposed rule, arguing for changes in financial penalties and more information on an appeals process.
- The AHA said the penalty structure proposed in the rule is “excessive,” — threatening the finances of small and rural hospitals — and the investigation and appeals processes are unclear.
The HHS released the proposed information blocking penalties for providers in the fall, years after rules went into effect that banned preventing the exchange of health data. Regulators also finalized penalties for health IT developers over the summer, allowing the government to begin investigating a backlog of complaints.
Under the proposed rule, hospitals participating in the Medicare Promoting Interoperability Program could lose 75% of the annual market basket increase, while critical access hospitals would see their payments reduced to 100% of reasonable costs instead of 101%.
Regulators estimated a median disincentive amount of $394,353, and a range of $30,406 to $2,430,766 across eligible hospitals.
But the AHA argued that the CMS and the Office of the National Coordinator for Health Information Technology underestimated the real financial impact of the proposal.
“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,” Ashley Thompson, senior vice president of public policy at the AHA, wrote in the letter.
The AHA also noted the market basket approach to determining disincentives could mean providers would face different penalties for the same offense depending on the year it took place and how long it takes to be reported to federal regulators.
NAACOS and the MGMA argued regulators should implement corrective action plans when providers are found to be information-blocking, rather than impose financial disencentives.
Some of the penalties might also jeopardize access to care, the AHA said. Critical access hospitals might struggle to operate under the proposed payment cuts.
And healthcare providers in ACOs could be removed from the program for one year if found to be information blocking, which could limit access for Medicare beneficiaries, the AHA added. ACOs already have strong incentives to share data and report blocking, as information can be key to coordinating care, NAACOS said.
The process to determine if providers are blocking health data exchange — and their options to appeal — aren’t clear either, according to the AHA’s letter.
The HHS’ Office of Inspector General would generally focus on cases that cause patient harm, impact providers’ ability to provide care, last for a long time or cause financial losses, regulators said in the rule. But the AHA argued caveats included “leave providers in the dark” on what the government will try to enforce.
“Providing specific examples of information blocking cases that the agencies feel warrant investigation would also provide OIG an opportunity to use these sample cases to explain the investigation process and formally propose an appeals process on which there can be public review and comment,” Thompson wrote.
The ONC can’t respond to comments because the agency is actively involved in rulemaking, a spokesperson told Healthcare Dive. The comment period for the proposed rule ended on Jan. 2.