HHS Releases Proposed Rule for Information Blocking Disincentives

The Department of Health and Human Services (HHS) has released a proposed rule for public comment that would establish disincentives for healthcare providers found by the HHS Office of Inspector General (OIG) to have committed information blocking.

The proposed rule implements the HHS Secretary’s authority under section 4004 of the 21st Century Cures Act.

HHS proposes to create the following disincentives for healthcare providers that have been determined by OIG to have committed information blocking and for which OIG refers its determination to the Centers for Medicare & Medicaid Services (CMS):

• Under the Medicare Promoting Interoperability Program, an eligible hospital or critical access hospital (CAH) would not be a meaningful EHR user in an applicable EHR reporting period. Eligible hospitals would lose 75 percent of the annual market basket increase; for CAHs, payment would be lowered to 100 percent of reasonable costs instead of 101 percent.
• Under the Promoting Interoperability performance category of the Merit-based Incentive Payment System (MIPS), an eligible healthcare provider or group would not be a meaningful user of certified EHR technology in a performance period, therefore receiving a zero score in the Promoting Interoperability performance category of MIPS, if required to report on that category. The Promoting Interoperability performance category score can be a quarter of a clinician or group’s total MIPS score in a year.
• Under the Medicare Shared Savings Program, a healthcare provider that is an Accountable Care Organization (ACO), ACO participant, or ACO provider or supplier would be ineligible to participate in the program for at least one year. This may result in a healthcare provider being removed from an ACO or barred from joining an ACO.

“HHS is committed to developing and implementing policies that discourage information blocking to help people and the health providers they allow to have access to their electronic health information,” Xavier Becerra, HHS secretary, said in a press release.

“We are confident the disincentives included in the proposed rule, if finalized, will further increase the appropriate sharing of electronic health information and establish a framework for potential additional disincentives in the future,” Becerra added.

ONC and CMS will host an information session about the proposed rule in the coming weeks.

The proposed rule is on display at the Office of the Federal Register’s website. It will be published in the Federal Register on November 1, 2023, and will be available for public comment for 60 days.

In the proposed rule, HHS also requests information from the public on disincentives that could be created in the future for healthcare providers.

To be assured consideration, written or electronic comments must be received via the Federal Register no later than 11:59 p.m. ET on January 2, 2024.

The proposed rule complements OIG’s rule that established information blocking penalties for the other actors identified by Congress (health IT developers of certified health IT or other entities offering certified health IT, health information exchanges, and health information networks).