Information blocking review, ‘disincentive’ processes need work, MGMA says

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Financial penalties should be a last resort, not a first step, in dealing with medical practices that commit information blocking, according to the Medical Group Management Association (MGMA).

Jan. 2, 2024, marked the end of a public comment period on proposed rules to create “disincentives” for health care organizations that engage in information blocking. Federal regulators have published potential penalties that could result in hospitals and physician groups paying thousands of dollars, possibly into hundreds of thousands of dollars.

Those are too harsh, MGMA Senior Vice President for Government Affairs Anders Gilberg said in a Jan. 2 letter to Chiquita Brooks-LaSure, administrator of the U.S. Centers for Medicare & Medicaid Services (CMS), and Micky Tripathi, PhD, the national coordinator for health information technology in the U.S. Department of Health and Human Services.

CMS and the Office of the National Coordinator for Health Information Technology must establish the disincentives per the 21st Century Cures Act. But MGMA has “significant concerns with the proposed rule and its impact on medical groups,” Gilberg said.

MGMA’s proposals include:

• Penalties should start with corrective action plans and education. CMS has used corrective action plans and can use a range of penalties, not just financial fees, for violators. Health care organizations need to understand offending conduct and should have a chance to correct it.

“Guidance and education would be invaluable not only to offending parties, but to prevent information blocking before it occurs,” Gilberg wrote.

• HHS and its Office of Inspector General (HHS-OIG) should focus on intentional cases of information blocking. Penalties should be scaled based on severity of the incidence to avoid disproportionately affecting smaller or less-resourced practices, and the entire investigatory process needs additional clarity, transparency, and better timing due to potential for penalties levied years after violations.
• Health care providers need an appropriate appeals process, including reconsideration of HHS-OIG determinations of information blocking.

“Given the intricacy of the information blocking regulations, coupled with competing privacy laws, and the interaction of electronic health record (EHR) vendors, instituting a fair appeals process is essential to ensuring providers are afforded proper due process considerations,” Gilberg wrote.

• CMS should not use the Merit-based Incentive Payment System (MIPS) to penalize clinicians for information blocking. CMS has proposed using zero scores in the promoting interoperability (PI) performance category for clinicians who commit information blocking. Given “the well-documented issues with MIPS, and the ever-changing nature of the program, this automatic adjustment is unnecessarily punitive and would diminish the financial resources available to practices,” Gilberg wrote.
• CMS is proposing to bar providers in accountable care organizations (ACOs) from participating in the Medicare Shared Savings Program based on incidents of information blocking. That goes against CMS’s own intention of having all Medicare beneficiaries in ACOs by 2030 and generally counters the transition to value-based care.
• MGMA supports transparency, but ONC should not post publicly information about providers with possible information blocking incidents, until there is an equitable appeals process. Providers should have a chance to review what will be posted publicly and information should not be posted indefinitely.