After several years of planning and stakeholder feedback, the U.S. Department of Health and Human Services (HHS) has finalized the disincentives it has established to discourage healthcare organizations from unreasonably blocking the exchange of electronic health information.
Information blocking is when a provider knowingly and unreasonably interferes with the access, exchange, or use of electronic health information except as required by law or covered by a regulatory exception. One example would be not providing patients access to their data in a timely manner. Another would be creating excessive fees for accessing data or connecting with other HIT systems or configuring IT systems in ways that limit the types of data that can be exported.
The information blocking regulations of the Cures Act took effect on April 5, 2021, but the disincentives rule has not been finalized until now. HHS has established the following disincentives for healthcare providers found by the HHS Office of Inspector General (OIG) to have committed information blocking and referred by OIG to the Centers for Medicare & Medicaid Services (CMS):
• Under the Medicare Promoting Interoperability Program, an eligible hospital or critical access hospital (CAH) that has committed information blocking and is referred to CMS by OIG will not be a meaningful electronic health record (EHR) user during the calendar year of the EHR reporting period in which OIG refers its determination to CMS. If the eligible hospital is not a meaningful EHR user, the eligible hospital 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, payment will be reduced to 100 percent of reasonable costs instead of 101 percent. This disincentive will be effective 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, then they will receive a zero score in the MIPS Promoting Interoperability performance category. If an individual eligible clinician is found to have committed information blocking and is referred to CMS, this disincentive will only apply to the individual, even if they report as part of a group. This disincentive will be effective 30 days after publication of the final rule.
• Under the Medicare Shared Savings Program, a 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 a period of at least one year. Consequently, the healthcare provider may not receive revenue that they might otherwise have earned through the Shared Savings Program. CMS also finalized in this rule that it will consider the relevant facts and circumstances (e.g. time since the information blocking conduct, the health care provider’s diligence in identifying and correcting the problem, whether the provider was previously subject to a disincentive in another program, etc.) before applying a disincentive under the Shared Savings Program. This disincentive will be effective 30 days after publication of the final rule; however, any disincentive under the Shared Savings Program would be imposed after January 1, 2025.
This HHS final rule complements OIG’s final rule from June 2023 that established penalties for information blocking actors other than healthcare providers, such as developers of certified health IT or other entities offering certified health IT, health information exchanges, and health information networks. If OIG determines that any of these individuals or entities committed information blocking, they may be subject to a civil monetary penalty of up to $1 million per violation.
“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. 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,” said HHS Secretary Xavier Becerra, in a statement. “When health information can be appropriately accessed and exchanged, care is more coordinated and efficient, allowing the healthcare system to better serve patients. But we must always take the necessary actions to ensure patient privacy and preferences are protected – and that’s exactly what this rule does.”
