AHCA Submits Comments on Information Blocking Disincentives Proposed Rule

Advocacy; Medicare

On January 2, 2024, AHCA submitted comments in response to the proposed rule 21st Century Cures Act: Establishment of Disincentives for Health Care Providers That Have Committed Information Blocking. This proposed rule would implement the provision of the Cures Act specifying that a Medicare-enrolled health care provider determined by the HHS Inspector General (OIG) to have committed information blocking shall be referred to the appropriate agency to be subject to appropriate disincentives.  
Specifically, this rulemaking would establish for such health care providers a set of appropriate disincentives using authorities under applicable Federal law. The proposed rule also provides information related to OIG’s investigation of claims of information blocking and referral of a health care provider to an appropriate agency to be subject to appropriate disincentives. Finally, the rule proposes to establish a process by which information would be shared with the public about health care providers that OIG determines have committed information blocking. 
This proposed rule would not establish information blocking disincentives for all health care providers, but limit the application to those Medicare provider hospitals and critical access hospitals (CAH) that have been and remain eligible for receiving incentive payments for demonstrating meaningful use of EHR technology. This would also apply for most physicians and professional providers under the Promoting Interoperability performance category of the Merit-based Incentive Payment System (MIPS). Additionally, this proposed rule would establish information blocking disincentives for Accountable Care Organizations (ACO) and providers/suppliers within an ACO as the ACO is eligible to obtain shared-savings incentive payments from the Medicare fee-for-service program. 
The overall impact of the disincentives of this proposed rule is to add other criteria to obtain available incentive payments under the applicable incentive programs. In other words, if a provider is identified by the OIG to have committed information blocking, a hospital would not be eligible for the meaningful use incentive payment, a physician or professional provider would face negative MIPS program adjustments, and ACOs or providers within ACOs would lose eligibility to participate in an ACO for at least one year. 
In addition, a Request for Information (RFI) was issued requesting information from the public on additional appropriate disincentives that should be considered in future rulemaking, particularly disincentives that would apply to health care providers that are not implicated by the disincentives proposed in this rule. The Agencies state a belief that  
“…it is important for HHS to establish appropriate disincentives that would apply to all health care providers. This would ensure that any health care provider that has engaged in information blocking would be subject to appropriate disincentives by an appropriate agency, consistent with the disincentives provision of the Cures Act.”   

Feedback from the RFI will be considered for future rulemaking. 
AHCA submitted several comments regarding the proposed rule provisions and the RFI. A summary of the comments is listed below. The complete AHCA comment letter is also available on the AHCA website. 

AHCA Comments Summary: 

  • Overall Comments: AHCA and its members recognize the significant benefits that the use of interoperable HIT would have on patient care and outcomes. However, historical financial and data specifications disparities have created a technology gap that needs to be addressed before SNFs should be subject to punitive information blocking policies. 

  • Regarding Medicare Shared Savings Program Proposals: AHCA recommends clarification in the final rule that these provisions, if finalized, do not impose any new information blocking regulatory requirements to individual ACO providers/suppliers beyond those promulgated under the ONC information blocking regulations. AHCA also recommends that a SNF provider be eligible for an exception from the information blocking exclusion if it is the only provider in a rural or underserved location and all other ACO participation requirements are otherwise met. This may include requirements for the ACO to help mitigate and overcome the identified information exchange challenges. Finally, AHCA recommends that a SNF or other ACO provider/supplier that is not explicitly identified in the ACO agreement as an incentive-sharing partner be exempt from the MSSP information blocking disincentive policy. 

  • Request for Information: In a recent MedPAC public meeting on December 7, 2023, the commissioners reported that the 2022 all-payer margin for SNFs across the country was a negative 1.4 percent. Given the current technology gap SNF providers face due to an absence of any meaningful support or incentives to adopt interoperable HIT that other provider types benefit from and the current fragile state of the sector, we urge caution in adopting information blocking disincentive policies impacting SNF unless there are: 1) Clear interoperability specifications applicable to SNF resident needs for the OIG to base information blocking decisions on, and 2) The introduction of meaningful incentives to support the adoption of such interoperable technologies to which the information blocking requirement could be made a part of.