January 2, 2024
The Honorable Xavier Becerra
U.S. Department of Health and Human Services
200 Independence Avenue, SW
Washington, D.C., 20201
Attention: RIN 0955-AA05
Dear Secretary Becerra:
The National Committee for Quality Assurance (NCQA) thanks you for the opportunity to provide feedback on the 21st Century Cures Act: Establishment of Disincentives for Health Care Providers That Have Committed Information Blocking Proposed Rule.
NCQA is a private, 501(c)(3) not-for-profit, independent organization dedicated to improving health care quality through our Accreditation, clinician quality and measurement programs. We are a national leader in quality oversight and a pioneer in digital quality measurement. Leveraging our strengths as a trusted third party, we are committed to helping organizations navigate their journey toward an equitable, digitally enabled health care system. Our mission is to improve the quality of health for all Americans, with an intentional focus on health equity and support for meaningful value-based payment models, propels our daily work.
Establishing Disincentives for Information Blocking
NCQA applauds HHS on the proposed rule to establish disincentives for Medicare providers identified by the Office of the Inspector General (OIG) for engaging in information blocking. Since the passage of the 21st Century Cures Act, HHS has taken calculated and essential steps to improve care coordination and information sharing that enhances patient safety and improves health outcomes. The latest proposed rule builds on those efforts by ensuring providers, and the certified technology they adopt, meet the expectations of the Cures Act.
NCQA supports the outlined proposals to bring civil monetary penalties and transparency to health care providers participating in Medicare that actively block information flowing to patients and their care partners. CMS’ initial economic analysis on the monetary impact of the proposed rule on Medicare eligible hospitals and Critical Access Hospitals (CAHs), as well as those providers participating in Merit-Based Incentive Payment System (MIPS) and the Medicare Shared Shavings Program (MSSP), provided evidence that the disincentives outlined are appropriate and necessary.
Hospitals/CAHs: We agree with CMS’s proposal to use the existing Medicare Promoting Interoperability Program authority, for meaningful use of certified EHR technology (CEHRT), to impose disincentives on eligible hospitals/CAHs that OIG determines participated in information blocking. We concur with revising the definition of ‘‘Meaningful EHR User’’ to state that if OIG determines that the hospital/CAH committed information blocking, then the hospital/CAH cannot be a meaningful EHR user. Subsequently, we believe a downward payment adjustment under the Medicare Promoting Interoperability Program to any such hospital/CAH is appropriate as an implication of not being a meaningful EHR user.
Medicare Providers/MIPS: We agree with CMS’s proposal that if OIG determines a provider participating in MIPs has blocked information, then they should a receive a zero for the MIPS Promoting Interoperability performance category. These providers are not demonstrating meaningful EHR use, or promoting interoperability, and do not meet the intent of the category.
Medicare ACOs/MSSP: We support CMS’s proposal to revise MSSP regulations to establish disincentives for health care providers (ACOs, ACO participants, or ACO providers/suppliers) that engage in information blocking. We believe it is appropriate for providers to be barred from participating in MSSP for a least 1 year if OIG determines the health care provider blocked the electronic exchange of health information.
Transparency for Information Blocking Determinations, Disincentives, and Penalties
Monetary penalties alone will not change the behavior of some health care providers and we concur with HHS that more public information should be available to identify which providers are impeding our collective interest of advancing a national health information technology infrastructure. We agree that ONC should post public information about which actors have been identified by OIG as an offender. We believe it is appropriate for ONC to disclose the health care provider’s name, business address, the practice found to have been information blocking, and the disincentive applied. We agree with HHS’s premise that this information can help the public’s understanding about which providers interfere with lawful access, exchange and use of electronic health information technology.
Future Information Blocking Disincentives
We thank HHS for these initial proposals and we encourage future rules to expand these requirements beyond hospitals, Medicare providers and ACOs. Pharmacies, laboratories, post-acute providers, home health agencies, ESRD facilities, ambulatory surgical centers and more should all be reviewed and determined how they are supporting, or disincentivizing, nationwide health information exchange. Where appropriate, and within federal law, disincentives should also be considered and implemented.
These initial proposals are vital to many agencies, but particularly CMS, as it continues to implement the National Quality Strategy and their Digital Quality Measurement Strategic Roadmap. Neither effort can be fully realized without interoperable health data, which makes finalizing this rule an imperative.
We remain committed to working with HHS to build a more equitable, sustainable and responsible American health care system. We welcome further discussion to advance our shared goal of high-quality health care for all Americans. If you have any questions, please contact Eric Musser, Assistant Vice President of Federal Affairs, at (202) 955-3590 or firstname.lastname@example.org.
Margaret E. O’Kane