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CMS Issues Guidance on Information Blocking Prevention in MIPS

CMS detailed how eligible clinicians meet requirements for the prevention of information blocking attestation under MIPS.

Health Data Exchange

Source: Thinkstock

By Kate Monica

- CMS recently released information clarifying three statements making up the prevention of information blocking attestation reporting requirement part of the Merit-Based Incentive Payment System (MIPS).

All eligible clinicians reporting on the advancing care information performance category must attest to the prevention of information blocking attestation to avoid payment penalties.

“If you are reporting as a group, the prevention of information blocking attestation by the group applies to all MIPS eligible clinicians within the group,” clarified CMS. “Therefore, if one MIPS eligible clinician in the group fails to meet the requirements of the Prevention of Information Blocking Attestation, then the whole group would fail to meet the requirement.”

To earn a score for the advancing care information performance category, eligible clinicians must “act in good faith” when implementing and using certified EHR technology (CEHRT) to exchange health data. Specifically, eligible clinicians must ensure their organizational policies and workflows do not restrict CEHRT functionality in any way.

“For example, if your CEHRT gives patients access to their electronic health information or exchanges information with other MIPS eligible clinicians, your practice must use these capabilities,” stated the federal agency.

READ MORE: Health Information Exchanges Report Information Blocking

CMS acknowledges circumstances beyond an eligible clinician’s control could affect their ability to exchange or use electronic health data.

The information blocking-focused attestation takes individual circumstances including practice or organization size, level of technology, and CEHRT functionality into account. Additionally, the attestation does not hold eligible clinicians responsible for outcomes they could not reasonably influence and does not assume how much eligible clinicians know about technology.

The prevention of information blocking attestation consists of three related statements. Attesting to all three statements together confirms eligible clinicians have acted in good faith to support health data exchange and avoid restricting CEHRT interoperability.

The three prevention of information blocking attestation statements are as follows: 

  • A MIPS eligible clinician must attest that they did not knowingly and willfully take action (such as to disable functionality) to limit or restrict the compatibility or interoperability of CEHRT.
  • A MIPS eligible clinician must attest that they implemented technologies, standards, policies, practices, and agreements reasonably calculated to ensure, to the greatest extent practicable and permitted by law, that the CEHRT was, at all relevant times, connected in accordance with applicable law, compliant with all standards applicable to the exchange of information, implemented in a manner that allowed for timely access by patients to electronic health information, and implemented in a manner that allowed for timely, secure, and trusted bi-directional exchange of structured electronic health information with other providers.
  • A MIPS eligible clinician must attest that they responded in good faith and in a timely manner to requests to retrieve or exchange electronic health information, including from patients, health care providers (as defined by 42 U.S.C. 300jj(3)), and other persons, regardless of the requestor’s affiliation or technology vendor.

As part of its five-page fact sheet, CMS outlined the specific expectations of each statement.

READ MORE: HHS Called on to Eliminate Health Information Blocking

Additionally, CMS provided examples for eligible clinicians demonstrating how some providers may act in good faith and still be restricted from sharing health data due to technical, legal, or other practical barriers beyond their control. Eligible clinicians contending with unique circumstances can still attest to meeting federal requirements despite potential limitations.

Examples of unique circumstances that may lead to unintentional limits on information sharing include system maintenance and security concerns.

Recently, health IT companies, providers, and policymakers have argued about the true culprits pf information blocking and whether the practice is even a real threat.

While federal agencies such as ONC have blamed health IT companies and EHR developers for leveraging ownership of patient protected health information (PHI) for profit, health IT companies deny hindering interoperability improvements at all.

The EHR association in particular called accusations of information blocking “inflammatory and inaccurate.”

READ MORE: Widespread Health IT Standards Use to End Information Blocking

The prevention of information blocking attestation could further fuel rising tensions among providers, innovators, and vendors surrounding the practice. 

UPDATE: DirectTrust President and CEO has commented.

In response to this newest CMS fact sheet, DirectTrust President and CEO David Kibbe expressed concern that the attestation may punish providers for problems potentially caused by non-compliant vendors. 

“The core problem with this is that we know, with a great deal of substantiating evidence, that on a regular basis some EHR vendors have not made their CEHRT usable with respect to these standards and implementation specifications, nor have they provided their customers with the features and functions needed to carry out exchanges that meet these attestation requirements," said Kibbe in a statement emailed to EHRIntelligence.com

"Therefore, eligible physicians may not be able to achieve the interoperable exchange capability they want and to which they have to attest," he continued. 

Furthermore, Kibbe stated he doubts physicians will be able to easily report that health data exchange was inhibited by outside circumstances -- including non-functional CEHRT -- and succesfully attest without penalty. 

"I don’t believe that physicians can simply report their EHR vendor doesn’t make their software usable for health information exchanges as they’re supposed to, and sign the attestation," he said. "Why? Because the rule states it is the physician and practice’s responsibility to ‘inform’ and ‘get adequate assurances from’ the vendors responsible for implementing and configuring their software to comply with the standards and laws.

"We also know physicians and practices are having an extremely difficult time getting some vendors’ products, including those certified to be compliant by ONC, to perform even the most basic health information exchange transactions with patients," he added. 

Ultimately, Kibbe urged ONC and CMS to provide further clarity about the attestation. 

“In my opinion, ONC and CMS can do more to clarify the minimal requirements for interoperable health information exchange necessary for providers and their EHR vendors/health IT vendors to avoid a charge of ‘information blocking,'” Kibbe stated. 

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