HHS Final Rule Sets Financial Disincentives for Information Blocking by Healthcare Providers
The Department of Health and Human Services (HHS) has published a final rule that sets financial disincentives for healthcare providers that engage in information blocking – practices that are known to be unreasonable and interfere with patient access to electronic health information or discourage the access, exchange, or use of electronic health information (EHI).
Any healthcare provider that is determined by the HHS Office of Inspector General (OIG) to have committed information blocking and is referred to the Centers for Medicare and Medicaid Services will receive reduced annual incentive payments. These payments are issued as an incentive for participation in HHS programs, including being a meaningful user of electronic health records under the Medicare Promoting Interoperability Program or the Promoting Interoperability performance category of the Merit-Based Incentive Payment System.
Under the Medicare Promoting Interoperability Program, an eligible hospital or critical access hospital (CAH) will no longer be considered to be a meaningful user of electronic health records for the calendar year of the EHR reporting period in which OIG refers its determination to the CMS. That means that an eligible hospital will not earn three-quarters of the annual market basket increase that they would otherwise receive for successful program participation and the payment to a CAH will be reduced to 100% of reasonable costs rather than 101%. The disincentive will take effect 30 days from publication of the final rule in the Federal Register.
Under the Promoting Interoperability performance category of the Merit-based Incentive Payment System (MIPS), a MIPS eligible clinician found to have engaged in information blocking will no longer be considered a meaningful EHR user for the calendar year of the performance period in which OIG refers its determination to CMS, resulting in a zero score in the MIPS Promoting Interoperability performance category. This category typically accounts for 25% of the MIPS-eligible clinician’s or group’s total final score in a performance period/MIPS payment year. The disincentive will take effect 30 days from publication of the final rule in the Federal Register.
Under the Medicare Shared Savings Program, a health care provider that is an Accountable Care Organization (ACO), ACO participant, or ACO provider or supplier will be prohibited from participating in the program for a period of at least one year, resulting in a loss of revenue from the Shared Savings Program. The disincentive takes effect 30 days after publication of the final rule; however, the Shared Savings Program disincentive will be imposed after January 1, 2025.
“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.”
Last year, the HHS issued a final rule that set penalties for non-healthcare providers: health information technology (IT) developers of certified health IT or other entities offering certified health IT, health information exchanges, and health information networks. If these entities are determined by the HHS-OIG to have committed information blocking, they will be subject to a civil monetary penalty of up to $1 million per violation.
