The Centers for Medicare & Medicaid Services (CMS) recently issued guidance intended to help clinicians eligible for the Merit-based Incentive Payment System (MIPS) navigate an attestation required thereunder concerning the prevention of information blocking. MIPS was implemented via CMS’s Quality Payments Program final rule with comment period released in 2016, and represents one avenue for payment reform under the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). Health industry stakeholders, and providers in particular, have repeatedly cited difficulty in communicating between electronic health record systems as a major impediment to effective health care reform (including due to so-called “information blocking” practices). In response, MIPS seeks to incentivize clinicians to promote the interoperability and compatibility of certified electronic health record technology (CEHRT).

Specifically, clinicians that report on the advancing care information performance category under MIPS must submit a three-part attestation demonstrating that the clinician acted in good faith when implementing and using CEHRT. In order to receive credit under MIPS, a clinician is expected to support the “appropriate exchange of electronic health information” and not take any knowing and willful actions to limit or restrict the compatibility or interoperability of the clinician’s CEHRT with other electronic health records.

Interestingly, in its guidance CMS acknowledges that there may be instances where selective restrictions or limitations on access to CEHRT records may be appropriate and would not violate MIPS. For example, according to CMS it may be acceptable for a clinician to restrict access to CEHRT information because of security concerns, for system maintenance, or where doing so is in the best interests of a patient. This final category is particularly notable for clinicians, as CMS expressly acknowledges that a clinician may restrict interoperability if the clinician reasonably believes, based on his/her patient relationship and clinical judgment, that the restriction is necessary to protect the patient’s health or wellbeing. That said, CMS also provokes additional uncertainty for clinicians by conditioning its guidance and stating that restrictions based on a patient’s best interest, and not a general policy, are “unlikely to be a knowing and willful restriction,” which appears to leave the door open for CMS to exercise its discretion to deem similar activities as violations.