In a response to the Establishment of Disincentives for Health Care Providers That Have Committed Information Blocking proposed rule, the Association for Clinical Oncology (ASCO) urges the Centers for Medicare & Medicaid Services (CMS) and the Office of the National Coordinator for Health Information Technology (ONC) not to implement the disincentives as proposed. ASCO also asks CMS for further clarification on the enforcement process, and the Association supports establishing a meaningful opportunity for appeals.
While information blocking requirements have been in effect for several years, the Department of Health and Human Services (HHS) has not yet established penalties for Medicare providers who the HHS Office of Inspector General (OIG) determined have committed information blocking. If finalized, this proposal would implement penalties for these providers and it would establish a process by which information would be shared with the public about health care providers who have committed information blocking.
Some of the concerns ASCO outlined in its comments to CMS are noted below:
Lack of Scaling
ASCO is extremely concerned that the proposed penalties are not scaled as they are for other patient access and safety violations under Medicare. Neither the severity of the violation, the consequences or patient harms resulting from information blocking, nor frequency of the information blocking within a reporting period are considered when the penalty is applied. A provider who is found to have committed information blocking one time for one patient in a period will receive the same penalty as someone who is found to have committed information blocking multiple times during the same reporting period. ASCO does not believe this is appropriate and urges CMS to reconsider the proposed penalties.
Lack of Appeals Process
ASCO is also extremely concerned with the lack of an appeals process directly to OIG—the authority making information blocking determinations. Although the 21st Century Cures Act does not expressly state that an appeals process must be established and available to providers, the Association believes that most due process rights would require such a step and that it would be reasonable, appropriate, and necessary for OIG to establish one. ASCO is extremely concerned that, as proposed, physicians and other providers would have different appeal rights and much less of an opportunity to refute an allegation compared to health IT vendors/health information exchanges and networks. Accordingly, we urge the agencies to establish a meaningful appeals process that is available to all providers and addresses both the underlying information blocking determination and the application of a disincentive.
Provider Disincentives
CMS proposes that a clinician in the Merit-based Incentive Payment System (MIPS) who reports on Promoting Interoperability will receive a zero in that category if OIG determines that the clinician committed information blocking. Under this proposed penalty, a provider who is found to have committed information blocking one time will likely receive a negative payment adjustment to 100% of their Medicare payments for one year, unless they receive a perfect score in the three remaining categories. ASCO believes this significant penalty could impact patient access to care, especially given the financial challenges facing providers under the current Medicare physician fee schedule.
Medicare Patient Access to Care
Finally, the proposed disincentives apply only to Medicare providers. ASCO is concerned that Medicare participation is once again being tied to additional financial penalties for clinicians. Before moving forward with this approach, HHS should conduct more explicit assessments of the impact on clinicians and patient access to care, which was not included in the proposed rule.
ASCO believes that the potentially negative effects on Medicare patient access and provider participation could be avoided if HHS began enforcement of its information blocking requirements with corrective action, education, and activities that would improve compliance.
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