By Leigh Burchell (Altera Digital Health), Vice Chair, EHR Association Information Blocking Compliance Task Force

The EHR Association submitted feedback to the Office of the National Coordinator’s proposed rule for Health Information Technology (ONC) concerning the Establishment of Disincentives for Health Care Providers That Have Committed Information Blocking. This proposed rule aims to establish disincentives for healthcare providers found guilty of information blocking. The Association’s comments, while reinforcing our commitment to improving information sharing, also highlight the need for a more inclusive approach to disincentives that could motivate a wider range of healthcare providers to embrace information sharing best practices.

Broadening the Scope of Disincentives

The proposed rule on disincentives focuses on CEHRT users, leaving out a significant list of other stakeholders who are central to information exchange in health care. This approach is in contrast to the ONC’s prior emphasis on the importance of all providers engaging in information sharing, irrespective of their use of CEHRT. This narrow focus will not fully support the broader goals of further easing interoperability and access to health information across the entire healthcare ecosystem.

For example, providers who are not engaged in the Merit-Based Incentive Payment System (MIPS), Promoting Interoperability (PI), or Accountable Care Organizations (ACO) programs — such as small practices, ambulatory surgical centers, and long-term care facilities — are less likely to be users of interoperable technology. This makes it more challenging for them to meet requirements for information exchange and potentially more prone to practices that could be considered information blocking.

Additionally, there are several stakeholders who play a critical role in the flow of information between numerous entities that use health data. Laboratories and pharmacies, for example, receive and send terabytes of patient data, but business or technical decisions they make that cause impediments to exchange – including proprietary standards and fee structures – are in no way affected by the proposed disincentives released by HHS. 

The Association believes that distinct disincentives tailored to each category of providers will be necessary for a sea change to take place across the industry. This approach would address the specific challenges and needs of providers outside the scope of current disincentive frameworks, as well as other non-provider inputs to information exchange, thereby encouraging truly open information sharing practices.

Addressing Disincentives Through Existing Programs

The EHR Association acknowledges that HHS feels limited in its legal authority to consider broader approaches that would impact a wider array of healthcare organizations more significantly. However, there is concern that the current framework, by focusing too narrowly, will do little to encourage a foundational strategy of information sharing across all types of healthcare organizations. Therefore, we are encouraging Congress to provide HHS and agencies within with the necessary expanded authority for this purpose.

Need for Attribution Clarification 

In many healthcare organizations, responsibilities for configuring and maintaining health IT systems are delegated to system administrators acting in accordance with the organization’s policies, and they are driven by complex organizational policies and practices. This can make it challenging to pinpoint who, exactly, within a multi-provider organization is responsible for actions that could be considered information blocking. This complexity makes it difficult to attribute information blocking actions to specific individuals or entities within the organization.

Further, the attribution practices suggested in the proposed rule could discourage group submissions for MIPS, particularly when the actions of one group member could significantly impact the potential disincentive for the entire group. This situation raises concerns about fairness and the practicality of enforcing disincentives within larger groups based on the actions of individuals. There are also questions about how these attribution practices would affect the new MIPS subgroup reporting, suggesting that the implementation of disincentives needs to consider the unique dynamics of group practices and the potential for unintended consequences.

Commitment to Good Information Sharing Practices

By advocating for a broader application of disincentives that encompasses an array of healthcare stakeholders beyond CEHRT users, the Association aims to foster an environment that encourages open information exchange across the entire healthcare ecosystem. Moreover, the Association underscores the importance of clarifying responsibility for information blocking within organizations to ensure fairness and effective implementation of disincentives. 

Ultimately, the EHR Association’s recommendations call for a nuanced understanding of the healthcare landscape and legislative support to empower HHS to enforce more inclusive and effective measures against information blocking, thereby advancing the goal of seamless and comprehensive access to health information for all.