While the 21st Century Cures Act is supported by many industry stakeholders, at least one powerhouse, the American Hospital Association, (AHA) has significant concerns about how it would impose penalties against information blockers.
In a letter dated July 10 to House Energy and Commerce chair Fred Upton (R-Mich.) and ranking member Frank Pallone (D-N.J.), the AHA states that while it appreciates the "positive changes" the bill makes to the interoperability provisions, the enforcement provisions in section 3001 "still rely on fraud and abuse mechanisms that will result in unfair sanctions to hospitals and other providers."
The legislation, which passed the House of Representatives July 9, requires the Department of Health and Human Services' Office of Inspector General to investigate instances of "information blocking" and impose civil monetary penalties on violators, which according to the AHA is "unnecessary and duplicative;" what's more, since the OIG will be allowed to keep the funds collected, will create some of the same problems as the Recovery Audit Contractor program, whose contractors are paid on a percentage of overpayment amounts collected.
The bill would replace current law, which requires providers to attest that they are not engaged in information blocking. The AHA recommends instead using the existing requirements in the Meaningful Use program to promote information sharing and using that vehicle for any sanctions.
The AHA also took issue with the legislation's overbroad definition of information blocking, as well as the fact that the same definition is being applied to vendors and providers. The AHA suggested that there be separate definitions, and that it be acknowledged that providers may not be able to share information electronically due to technological limits or high fees imposed on vendors.
"Hospitals and health systems across the country are actively engaged in building their IT systems and view information exchange as vital to care improvement, as well as to successful implementation of new models of care. ... While progress is being made in some areas, the certified EHRs and related infrastructure that providers must rely on do not yet support efficient and effective electronic information exchange," the letter states.
Deliberate information blocking has received widespread recognition in recent months. The Office of the National Coordinator's report on information blocking, released earlier this year, blamed both vendors and providers for contributing to it and offered suggestions to deal with it, including working with the OIG. Still, ONC admitted in the report that currently "[e]ven in egregious cases, most information blocking does not violate any current provision of law."
To learn more:
- here's the AHA letter (.pdf)