HHS Publishes Proposed Rule Establishing Information Blocking Disincentives for Healthcare Providers
The Centers for Medicare and Medicaid Services (CMS) at the Department of Health and Human Services (HHS) has published a long-awaited proposed rule that establishes disincentives for healthcare providers that have committed information blocking, as called for by the 21st Century Cures Act. Information blocking is classed as knowingly or unreasonably interfering with the access, exchange, or use of electronic health information, except as required by law or covered by a regulatory exception.
The Cures Act requires the Office of Inspector General (OIG) to refer healthcare providers determined by OIG to have committed information blocking to the appropriate agency to be subject to appropriate disincentives using authorities under applicable Federal law, as the Secretary sets forth through notice and comment rulemaking. On June 27, 2023, the HHS OIG published its final rule that implemented information blocking penalties of $1 million per violation for health information technology (IT) developers of certified health IT and other entities offering certified health IT, health information exchanges, and health information networks. The penalties took effect on August 2, 2023.
The latest HHS proposed rule establishes penalties for healthcare providers found to have committed information blocking. The proposed disincentives are as follows:
- Medicare Promoting Interoperability Program: An eligible hospital or critical access hospital (CAH) would not be a meaningful electronic health record (EHR) user in an applicable EHR reporting period. The impact on eligible hospitals would be the loss of 75 percent of the annual market basket increase; for CAHs, payment would be reduced to 100 percent of reasonable costs instead of 101 percent.
- Promoting Interoperability performance category of the Merit-based Incentive Payment System (MIPS): An eligible clinician or group would not be a meaningful user of certified EHR technology in a performance period and would therefore receive a zero score in the Promoting Interoperability performance category of MIPS, if required to report on that category. The Promoting Interoperability performance category score typically can be a quarter of a clinician or group’s total MIPS score in a year.
- Medicare Shared Savings Program: A health care provider that is an Accountable Care Organization (ACO), ACO participant, or ACO provider or supplier would be deemed ineligible to participate in the program for a period of at least one year. This may result in a healthcare provider being removed from an ACO or prevented from joining an ACO.
The proposed rule will be published in the Federal Register on November 1, 2023. A 60-day comment period will follow, with the comments made accessible for public inspection. Comments must be submitted by no later than January 2, 2024, at 11:59 p.m. The HHS will consider all comments before publishing the final rule, which is expected to be issued later in 2024. The Office of the National Coordinator for Health Information Technology (ONC) and the CMS will host an information session about the proposed rule in the coming weeks.
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“HHS is committed to developing and implementing policies that discourage information blocking to help people and the health providers they allow to have access to their electronic health information,” said HHS Secretary Xavier Becerra. “We are confident the disincentives included in the proposed rule, if finalized, will further increase the appropriate sharing of electronic health information and establish a framework for potential additional disincentives in the future.”
