The Department of Health and Human Services has released a final rule on information blocking, establishing disincentives for healthcare providers who engage in practices that interfere with the access, exchange, or use of electronic health information (EHI). The rule exercises the HHS secretary’s authority under the 21st Century Cures Act.
HHS Secretary Xavier Becerra said, “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.” The rule aims to promote a healthcare system where people and their health providers have access to electronic health information, while also protecting patient privacy and preferences.
Disincentives for Healthcare Providers
Under the Medicare Promoting Interoperability Program, healthcare providers found to have committed information blocking will not be considered meaningful electronic health record users during the calendar year of the EHR reporting period. This will result in a reduction of payment, with eligible hospitals unable to earn three quarters of the annual market basket increase and critical access hospitals receiving reduced payment.
The disincentive will also apply to the Merit-based Incentive Payment System (MIPS), where healthcare providers who commit information blocking will receive a zero score in the Promoting Interoperability performance category. This score typically accounts for a quarter of an individual’s total final score in a performance period, unless an exception applies.
In addition, healthcare providers who commit information blocking may be ineligible to participate in the Medicare Shared Savings Program for at least one year, resulting in potential revenue loss. The Centers for Medicare and Medicaid Services (CMS) will consider relevant facts and circumstances before applying a disincentive under the Shared Savings Program.
These disincentives will be effective 30 days after publication of the final rule, with the exception of the Shared Savings Program disincentive, which will be imposed after January 1, 2025. Additional disincentives may be established through future rulemaking.
Industry Reaction
MGMA SVP of Government Affairs Anders Gilberg said, “HHS could have chosen to work with providers to implement corrective action plans, but instead finalized unnecessarily punitive penalties.”
The OIG’s rule allows for civil monetary penalties of up to $1 million per violation for health information technology developers, health information exchanges, and health information networks that commit information blocking.
CMS released a proposed rule on information blocking penalties in October 2023, and the HHS final rule marks a significant step towards promoting interoperability and preventing information blocking in the healthcare industry. The rule’s impact on healthcare providers and patients will be closely monitored in the coming months, with the first disincentives set to take effect 30 days after publication.
The Centers for Medicare and Medicaid Services will play a key role in implementing and enforcing the final rule, including referring cases of information blocking to the HHS Office of Inspector General. The OIG will then investigate and determine whether a healthcare provider has committed information blocking, and if so, refer the case back to CMS for disincentives to be applied. This process will help to ensure that healthcare providers are held accountable for their actions and that patients have access to their electronic health information.
Implementation and Enforcement
The rule also includes provisions related to the consideration of relevant facts and circumstances in applying disincentives under the Medicare Shared Savings Program. This will allow CMS to take into account factors such as the time since the information blocking conduct, the healthcare provider’s diligence in identifying and correcting the problem, and whether the provider was previously subject to a disincentive in another program. By considering these factors, CMS can ensure that the disincentives are applied in a fair and equitable manner.
