HHS establishes provider information blocking disincentives

HHS has released a final rule establishing disincentives for healthcare providers found by the HHS Office of Inspector General (OIG) to have committed information blocking.

The final rule exercises the HHS secretary's authority under the 21st Century Cures Act to create disincentives for healthcare providers who participate in information blocking.

The Cures Act defines information blocking as any practice likely to interfere with accessing, exchanging, or using electronic health information except as required by law or covered by a regulatory exception.

"This final rule is designed to ensure we always have access to our own health information and that our care teams have the benefit of this information to guide their decisions," Xavier Becerra, HHS secretary, said in a press release. "With this action, HHS is taking a critical step toward a healthcare system where people and their health providers have access to their electronic health information."

"When health information can be appropriately accessed and exchanged, care is more coordinated and efficient, allowing the healthcare system to better serve patients," Becerra added. "But we must always take the necessary actions to ensure patient privacy and preferences are protected -- and that's exactly what this rule does."

HHS created the following disincentives for healthcare providers found by OIG to have committed information blocking and referred by OIG to CMS:

• Under the Medicare Promoting Interoperability Program, an eligible hospital or critical access hospital (CAH) that has participated in information blocking and is referred to CMS by OIG will not be a meaningful EHR user during the calendar year of the EHR reporting period when OIG refers its determination to CMS. If the eligible hospital is not a meaningful EHR user, the organization will not be able to earn three-quarters of the annual market basket increase they would have been able to earn for successful program participation. For CAHs, CMS will reduce reimbursement to 100 percent of reasonable costs instead of 101 percent. This disincentive will take effect 30 days after publication of the final rule.
• Under the Promoting Interoperability performance category of the Merit-based Incentive Payment System (MIPS), a MIPS eligible clinician (including a group practice) who has committed information blocking will not be a meaningful EHR user during the calendar year of the performance period in which OIG refers its determination to CMS. If the MIPS-eligible clinician is not a meaningful EHR user, they will receive a zero score in the MIPS Promoting Interoperability performance category, which usually accounts for a quarter of a MIPS-eligible clinician's or group's final score in a performance period/MIPS payment year. CMS modified its policy for this disincentive to clarify that if an individual eligible clinician is found to have committed information blocking and is referred to CMS, the disincentive under the MIPS Promoting Interoperability performance category will only apply to the individual, even if they report as part of a group. This disincentive will be effective 30 days after the final rule is published.
• Under the Medicare Shared Savings Program, a healthcare provider that is an Accountable Care Organization (ACO), ACO participant, or ACO provider or supplier who has committed information blocking may be ineligible to participate in the program for at least one year. CMS also finalized in this rule that it will consider the relevant facts and circumstances before applying a disincentive under the Shared Savings Program, including time since the information blocking conduct and the provider's diligence in identifying and correcting the problem. The disincentive will become effective 30 days after the final rule is published; however, any disincentive under the Shared Savings Program will be imposed after January 1, 2025.
• HHS may establish additional disincentives through future rulemaking.

The HHS final rule accompanies OIG's final rule from June 2023 which created information blocking penalties for certified health IT developers or other entities offering certified health IT, health information exchanges and health information networks.

If OIG determines that an individual or entity committed information blocking, they may be subject to a civil monetary penalty of up to $1 million per incident.

Hannah Nelson has been covering news related to health information technology and health data interoperability since 2020.