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CMS Notice Reminds Physicians to Attest to No Data Blocking

Posted in Affordable Care Act, Legislation and Public Policy, Medicare and Medicaid, Reimbursement Matters

On October 26, the Centers for Medicare & Medicaid Services (CMS) posted a notice “reminding providers of their responsibilities to quickly share medical information with patients and other clinicians, or else face financial penalties,” in order to comply with the Merit-Based Incentive Payment System (MIPS) and MACRA.To receive bonuses or avoid penalties, all MIPS-eligible clinicians are required to attest that they are not engaged in information blocking and that they give patients their data in a timely fashion by attesting to three statements regarding their certified EHR technology (CEHRT):

• They did not knowingly and willfully take action (such as to disable functionality) to limit or restrict the compatibility or interoperability of CEHRT.

• They implemented technologies, standards, policies, practices, and agreements reasonably calculated to ensure, to the greatest extent practicable and permitted by law, that the CEHRT was, at all relevant times:
1. Connected in accordance with applicable law;
2. Compliant with all standards applicable to the exchange of information, including the standards, implementation specifications, and certification criteria adopted at 45 CFR Part 170;
3. Implemented in a manner that allowed for timely access by patients to their electronic health information (including the ability to view, download, and transmit this information); and
4. Implemented in a manner that allowed for the timely, secure, and trusted bidirectional exchange of structured electronic health information with other health care providers (as defined by 42 U.S.C. 300jj(3)), including unaffiliated providers, and with disparate CEHRT and health IT vendors.

• They responded in good faith and in a timely manner to requests to retrieve or exchange electronic health information, including from patients, health care providers and other persons, regardless of the requestor’s affiliation or technology vendor.

While the guidance notes that providers will not be held accountable for things outside their control, there remains concern that MIPS clinicians may not have enough information about the CEHRT they are using to accurately answer these detailed attestations. The attestations are due in the first quarter of next year.

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