AMGA joins chorus opposing harsh penalties for information blocking

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Federal regulators are taking an “overly punitive” approach in proposed rules about information blocking by health care organizations.

AMGA added its voice to the chorus of medical groups objecting to draft rules creating penalties and “disincentives” for information blocking. AMGA published its response in a letter this week to the U.S. Centers for Medicare & Medicaid Services (CMS) and the Office of the National Coordinator for Health Information Technology (ONC).

The trade association “firmly opposes information blocking and supports the steady increase of interoperability across physician workflows,” said the letter from AMGA President and CEO Jerry Penso, MD, MBA.

“Patients should have access to their healthcare information,” Penso said in an accompanying news release. “But, just as with other aspects of care, AMGA recommends a collaborative approach to addressing this issue. These proposed penalties jump straight to punishment, when instead providers should have the opportunity to work with regulators to address any concerns or problems.”

The new rules target physicians in value-based care arrangements and will discourage participation in the Medicare Shared Savings Program (MSSP), according to AMGA.

Instead, CMS should use a balanced approach and reconsider the severity of penalties, such as excluding health care providers from the MSSP, according to AMGA.

“Implementing less severe consequences would encourage compliance without disproportionately discouraging participation in value-based health care models,” the letter said.

Excluding physicians from the MSSP would block them from joining accountable care organizations (ACOs), and entire ACOs could be barred from participating in the MSSP if the regulators determine it engaged in information blocking, according to AMGA.

Barring providers is excessive when milder penalties are available, the letter said.

MIPS scores

CMS should refrain from enforcing information blocking rules by using the Promoting Interoperability (PI) score in the Merit-Based Incentive Payment System (MIPS). The PI score accounts for 25% of the total MIPS score, meaning physicians likely would be penalized in the 2024 MIPS performance ratings.

Appeals process

CMS should allow providers to use corrective action plans and an appeal process for determinations of information blocking. The proposed rule states that ACO appeals within MSSP regulations to not extend to determinations of information blocking by the U.S. Department of Health and Human Services’ Office of Inspector General (HHS-OIG).

“Moreover, having appeal rights vary depending on the program under which disincentives are applied is inherently unfair,” the AMGA letter said. “All providers should have the ability to appeal the OIG’s underlying determination through the same appeals process.”

Common goals

Penso noted AMGA staff met with ONC last year to discuss the rules and “areas of alignment, particularly in recognizing the importance of transparency and access to data among patients, providers, and payers.”

“We continue to advocate for our shared goal of improving health care outcomes, facilitating data exchange, and shifting the U.S. health care system towards value-based care,” he wrote.