The Department of Health and Human Services has released a final rule on information blocking that establishes disincentives for healthcare providers who engage in practices they know are unreasonable and likely to interfere with the access, exchange, or use of electronic health information, except as required by law or covered by a regulatory exception.
This rule exercises the HHS secretary’s authority under the 21st Century Cures Act. The action takes a critical step toward a health care system where people and their health providers have access to their electronic health information. HHS Secretary Xavier Becerra said the 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.
Disincentives for providers are established through the HHS Office of Inspector General. If the OIG refers a determination to the Centers for Medicare and Medicaid Services, eligible hospitals and critical access hospitals may lose their status as meaningful electronic health record users. This loss of status prevents the hospital from earning three quarters of the annual market basket increase they would have been able to earn for successful program participation, and for critical access hospitals, payment is reduced to 100 percent of reasonable costs instead of 101 percent.
Under the Promoting Interoperability performance category of the Merit-based Incentive Payment System (MIPS), a MIPS eligible clinician that 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. This zero score in the Promoting Interoperability performance category typically represents a quarter of an individual’s total final score in a performance period or payment year. CMS modified its policy 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 the provider reports as part of a group.
Providers who are Accountable Care Organization participants may be ineligible to participate in the Medicare Shared Savings Program for at least one year. Consequently, the provider may not receive revenue they might otherwise have earned through the Shared Savings Program. CMS will consider the relevant facts and circumstances before applying a disincentive under this program, such as the time since the information blocking conduct, the healthcare provider’s diligence in identifying and correcting the conduct, and whether the provider was previously subject to a disincentive in another program.
Broader Impact on Health IT
This HHS final rule complements the OIG’s final rule from June 2023 that established penalties for information blocking actors other than healthcare providers. These actors include health information technology 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. Additional disincentives may be established through future rulemaking.
The HHS Office of Inspector General also targets health information technology developers of certified health IT. 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 policy aligns with broader efforts to modernize the industry and ensure that patients retain control over their own data. Physical AI Set to Transform Healthcare Industry.
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