Financial disincentives for providers who commit information blocking 

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The Department of Health and Human Services has released a final rule on information blocking.

The rule establishes disincentives for healthcare providers who engage in practices they know are unreasonable and likely to interfere with, prevent, or materially discourage the access, exchange, or use of electronic health information (EHI), except as required by law or covered by a regulatory exception.

This final rule exercises the HHS secretary's authority under the 21st Century Cures Act.

"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 health care system where people and their health providers have access to their electronic health information," said HHS Secretary Xavier Becerra. "When health information can be appropriately accessed and exchanged, care is more coordinated and efficient, allowing the health care 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."

WHY THIS MATTERS

HHS has established the following disincentives for healthcare providers found by the HHS Office of Inspector General to have committed information blocking, and who have been referred by the OIG to the Centers for Medicare and Medicaid Services:

• Under the Medicare Promoting Interoperability Program, an eligible hospital or critical access hospital that has committed information blocking and is referred to CMS by the OIG will not be a meaningful electronic health record 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% of reasonable costs instead of 101%. 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) which 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. The MIPS Promoting Interoperability performance category score is typically a quarter of an individual MIPS eligible clinicians' total final score in a performance period/MIPS payment year, unless an exception applies and the MIPS eligible clinician is not required to report measures for the performance category. CMS has 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 the provider reports 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 healthcare provider that is an Accountable Care Organization, 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 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 (such as the time since the information blocking conduct, the healthcare 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.

Additional disincentives may be established through future rulemaking.

THE LARGER TREND

CMS released a proposed rule on information blocking penalties in October 2023.

This HHS final rule complements the OIG's final rule from June 2023 that established penalties for information blocking actors other than healthcare providers, as identified in the Cures Act (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. 

ON THE RECORD

MGMA SVP of Government Affairs Anders Gilberg said, "While MGMA recognizes the need to establish appropriate disincentives for healthcare providers who commit information blocking, we are disappointed the Administration chose to move forward with significant administrative and financial penalties within existing Medicare quality programs. Medical groups already face myriad difficulties reporting under MIPS, and by enforcing a penalty of zero points in the Promoting Interoperability category, this rule ensures that offending groups will likely receive a negative payment adjustment to every Medicare claim for an entire payment year. HHS could have chosen to work with providers to implement corrective action plans, but instead finalized unnecessarily punitive penalties that will financially damage practices and negatively impact Medicare patients. Preventing practices and ACOs from participating in MSSP runs counter to the transition to value-based care and undercuts the ability of providers within the ACO framework to succeed."  

Email the writer: SMorse@himss.org

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