- What disincentives will be applied to HCPs that do not participate in one of the identified federal programs? - Disparity in the financial disincentives applicable to HCPs, which would be applied regardless of the severity or nature of the offense. For example, HHS noted the median disincentive amount of $394,353 and a 95 percent range of $30,406 to $2,430,766 across eligible hospitals, with a higher impact to hospitals with greater base inpatient prospective payment system payments. - Treatment of HCPs with multiple ‘offenses’ over several years in the same manner as a provider with only one offense (no apparent additional disincentives if the OIG investigates all offenses within the same referral). - How will HCPs who also meet the definition of an HIE/HIN will be investigated and assessed? HHS expressly references that HCPs that meet these dual actor definitions may be subject to the Cures Act civil monetary penalties as an HIE/HIN; however, the a fee to access their EHI electronically through an online patient records portal or to transmit EHI from the HCP’s electronic medical record through an application programming interface (“API”) of the patient’s choice. It could also be information blocking if an HCP charged fees for electronic copies of or access to EHI without a reasonable costbasis or in a discriminatory manner. The Proposed Disincentives Rule raises more concerns than it sheds light on the proposed disincentives, what are these concerns and who do they impact? Because there are many different types of facilities and clinicians which are either not eligible to participate in or which do not participate in the federal incentive programs identified under the Proposed Disincentives Rule, many HCPs would not be subject to any proposed disincentives at this time, even though such HCPs would be prohibited from engaging in information blocking under the Cures Act. First, there are Medicare volume threshold and other eligibility requirements for each federal incentive program that may not be met by a provider. Second, there are a number of hardship exceptions or flexibilities available to providers which may exempt them entirely or from certain requirements under a particular federal incentive program to which the proposed disincentives would apply. Additional rulemaking in the future would be warranted to address these categories of providers not subject to the proposed disincentives. Some of the concerns raised by the Proposed Disincentives Rule include: - How will the OIG determine an HCP has engaged in information-blocking resulting in referral for proposed disincentives, and will there be opportunities for HCPs to appeal OIG determinations before they are referred for disincentives? 42 LAWYER MONTHLY DECEMBER 2023
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