CMS guidance on data blocking spurs fear, disappointment

A new CMS guidance reminding providers of their responsibilities to quickly share medical information with patients and other clinicians, or else face financial penalties, is causing the medical community to panic.

The agency posted a notice Thursday that physicians will need to attest that they are not engaged in information blocking and that they give patients their data in a timely fashion. The guidance targets providers participating in the Merit-based Incentive Payment System to comply with MACRA. The notice worried Dr. David Kibbe who said providers have complained for years that their electronic health record vendors aren't enabling data sharing with other providers. The guidance noted that providers would not be held accountable for things outside of their control, but Kibbe said some of the wording was vague. For instance, it said that individual physicians and practices must get adequate assurances from their vendors that they are able to comply with the information sharing requirements. "And we know that physicians and practices are having a heck of a time getting some vendors' products to perform even the most basic health information exchange transactions with patients and other providers," Kibbe, who is president and CEO of DirectTrust, a nonprofit collaborative to support interoperability. Another challenge is that physician practices may not have the technical knowledge to know when their EHR vendor has made technological improvements to increase data sharing, said Robert Tennant, director of health information technology policy at the Medical Group Management Association. Others are concerned that the guidance did not clearly define "reasonable attempts" at interoperability. Providers trying to comply can still be accused of falling short, according to Michael Martz, an information officer for Ascension. He said industry stakeholders asked for guidance but what the agency released isn't enough. The attestations are due first quarter of next year. "What they issued yesterday doesn't provide the level of clarification we needed," Martz said. "We are still at risk of doing what we think are our best efforts but under someone else's perceptions be told we're not, and then face penalties as a result." Under MIPS, providers become eligible for either bonus payments or penalties based on their performance, including evidence of quality improvement, cost reduction or maintaining current levels of spending; efficient use of EHRs and clinical improvement activities such as later office hours and greater use of care coordination. Under the EHR metric, MACRA called for the attestation related to data blocking to ensure that doctors supported the appropriate exchange of data and were not knowingly and willfully limiting or restricting their EHR's ability to share information with providers that may have different record systems. Dr. Karen DeSalvo, former acting assistant secretary and national coordinator for health information technology at HHS said guidance is important since EHR vendors are only one hurdle to interoperability. Physicians fearful of violating federal privacy laws also be skittish, she said. Other times, there are intentional efforts to block data sharing. "Sometimes their reasons may be financial if they don't want the patients to take their data and go to another physician or group," DeSalvo said. "In the quest to achieve interoperability, we generally believe that it isn't a technology challenge but rather a set of business decisions and cultural norms." A CMS spokeswoman said the agency doesn't have data on how often doctors block sharing information. Mari Savickis, vice president of federal affairs at the College of Healthcare Information Management Executives (CHIME) said it isn't productive to point fingers. She believes there are still genuine challenges in technology on behalf of both providers and EHR vendors. "By in large what we see is that we're all trying to swim in the same direction," Savickis said.