The Texas Medical Association and others in organized medicine are pushing back on proposed federal information-blocking rules to establish “disincentives,” financial and otherwise, that could discourage Medicare participation and compromise sensitive patient-physician discussions, among other concerns.
In November, the Department of Health and Human Services (HHS) released a proposed rule that could amount to serious financial penalties for physicians and hospitals, critical access hospitals, clinician groups, and accountable care organizations (ACOs) found to have committed information blocking.
The proposed rule also implements a provision of the 21st Century Cures Act that would apply to physicians and groups participating in the Merit-Based Incentive Payment System (MIPS) and the Medicare Shared Savings Program.
TMA’s December 2023 comment letter to the agencies argued that “any additional Medicare penalties will further drive physicians away from Medicare, exacerbating patient access to care.”
Instead, TMA encouraged the Centers for Medicare & Medicaid Services and the Office of the National Coordinator for Health Information Technology to offer a corrective action option that would allow physicians to “immediately course correct and avoid any penalties or other disincentives.”
If determined by the HHS Office of Inspector General (OIG) to have committed information blocking, physicians and groups could face the following under the proposal:
- A zero score in the promoting interoperability performance category of MIPS – which usually amounts to a quarter of a physician’s or group’s total MIPS score in a year and possibly significant payment consequences – for a physician or group required to report on that category; and
- Ineligibility for physicians to participate in an ACO program for at least one year, possibly resulting in the physician being removed from an ACO or prevented from joining one.
The penalties could apply to physicians who take time to confer with patients about sensitive test results, such as a cancer diagnosis. TMA argued that by penalizing physicians for this time, patients would view sensitive results before speaking to their clinician.
“Cancer-related test results can be confusing, scary, and life-changing. Physicians are trained to convey such information in a timely, informative, and supportive manner so patients understand not only what the test means, but also what options they have. This is an opportunity to offer hope and reassurance to the patient,” TMA stated in the comment letter.
TMA also warned the penalties could discourage participation in value-based care programs.
“This [rule] punishes not only the offender, but also all ACO participants and most importantly, the patients who benefit from care coordination activities.”
The American Medical Association, American Academy of Family Physicians, American Hospital Association also filed comments expressing widespread concerns about the proposed rule.
As TMA continues to advocate for physicians on this issue, experts recommend practices ensure they are giving patients prompt access to electronic health information upon request unless an exception applies.
That information includes:
- Discharge summaries;
- History and physicals;
- Progress and consult notes;
- Imaging reports;
- Laboratory and pathology reports; and
- Procedure notes.
Practices should also have policies and procedures in place ensuring compliance.
For more information, TMA’s 21st Century Cures Act Resource Center has articles, explainers, webinars, white papers, and more to help practices with compliance.
Alisa Pierce
Reporter, Division of Communications and Marketing
(512) 370-1469