CMS Opens Door to False Claims Cases Against Docs Blocking Data

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By Alex Ruoff

April 29 — Doctors who stand in the way of sharing electronic patient data may risk scrutiny by the federal government under a proposed rule that will change how Medicare pays doctors, attorneys told Bloomberg BNA.

The Centers for Medicare & Medicaid Services in its proposed rule would require Medicare doctors being paid under the Merit-Based Incentive Payment System (MIPS) and hospitals in the meaningful use program to demonstrate they haven't limited their electronic health record system's ability to exchange patient records with other providers' EHR systems, a practice known as information blocking.

Providers and hospitals that use their EHR systems to block data sharing could face investigation under the False Claims Act, which poses hefty civil penalties for running afoul of the law, health law attorneys told Bloomberg BNA.

“If providers do make that attestation and they've engaged in information blocking, then they'd be providing fraudulent claims to the government,” Jodi Daniel, a partner in the Washington office of Crowell & Moring and former director of the Office of Policy at the Office of the National Coordinator for Health IT, told Bloomberg BNA April 28.

Information blocking provisions in the proposed MIPS rule were meant to encourage the electronic sharing of patient records among health-care organizations, partly by emphasizing the need for hospitals and doctors to establish policies and procedures for data sharing, Daniel said.

Health regulators are growing concerned about data blocking, CMS said in the proposed rule that was required under the Medicare Access and CHIP Reauthorization Act (MACRA) of 2015 (see previous article).

Attestation Requirements

Under the proposed rule, health-care providers and hospitals would be required demonstrate they haven't “knowingly and willfully taken action (such as to disable functionality) to limit or restrict the compatibility or interoperability of certified EHR technology.”

At a minimum, according to the proposal, providers and hospitals would have to attest to the CMS they acted in good faith to implement and use their EHRs in such a manner that would not interfere with the electronic exchange of health information among providers and with patients.

Regulators said in the proposed rule that providers and hospitalswanting to attest to not blocking health information exchange would have to state to HHS:

  •  they haven't knowingly or willfully taken action to restrict the compatibility or interoperability of their federally certified EHR systems;
  •  they have implemented technologies, standards, policies, practices and agreements reasonably calculated to ensure their EHRs are compliant with exchange standards and implemented them to allow timely access by patients to their electronic health information; and
  •  they respond in a timely manner to requests to retrieve or exchange electronic health information, including from patients and providers, regardless of the requestor's affiliation or technology vendor.

These three statements create a standard for information blocking, Daniel said.

The proposed rule would require health-care providers and hospitals to take an active role in promoting the interoperability of EHR systems, she said. Regulators are calling for health-care organizations to create a set of policies and procedures that support the electronic sharing of health information among providers and with patients, she said.

“It's a knowing and willful standard: as long as folks are thinking about how to make information available for patient care and patients themselves, they should be okay,” Daniel said. “But it will be something they'll need to think about.”

False Claims Issues

Having health-care providers and hospitals attest they're not blocking health information exchange would allow regulators to audit them later, Jeff Coughlin, senior director for federal and state affairs for the Healthcare Information and Management Systems Society (HIMSS), said during a briefing on the proposed rule with reporters.

However, Coughlin said, regulators are unlikely to audit a provider or hospital only to determine if they're blocking information.

Likely the Department of Health and Human Services Office of Inspector General would investigate whether providers or hospitals have violated information blocking provisions of the MIPS payment rule, which could constitute a violation of the False Claims Act, Daniel said.

False Claims Act penalties can be significant, attorneys told Bloomberg BNA. Additionally, the act rewards whistle-blowers, opening the door for insiders to report health-care providers and hospitals for violating the law.

Providers and hospitals found blocking data could find themselves liable for the money they've collected through the MIPS program, Kevin McAnaney, with the Law Offices of Kevin G. McAnaney in New York, told Bloomberg BNA April 29.

Federal False Claims Act penalties can include fines of more than $10,000 per false claim, he said.

However, Brian Roark, an attorney with the Nashville-baed law firm of Bass, Berry & Sims, told Bloomberg BNA he expects regulators will have a difficult time proving a provider or hospital violated the information blocking provision of the MIPS rule.

“I think they're going to have a hard time demonstrating that information blocking has actually occurred,” he said.

To contact the reporter on this story: Alex Ruoff in Washington at

To contact the editor responsible for this story: Patty Logan at

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