HHS Proposes Rule to Establish Disincentives for Health Care Providers that have Committed Information Blocking

The U.S. Department of Health and Human Services (HHS) released a proposed rule for public comment that would establish disincentives for health care providers found by the HHS Office of Inspector General (OIG) to have committed information blocking – when a provider knowingly and unreasonably interferes with the access, exchange, or use of electronic health information except as required by law or covered by a regulatory exception. The proposed rule, which reflects contributions from throughout the department, implements the HHS Secretary’s authority under section 4004 of the 21st Century Cures Act (Cures Act).  

The proposed rule released today complements OIG’s rule that established information blocking penalties for the other actors identified by Congress (health information technology (IT) developers of certified health IT or other entities offering certified health IT, health information exchanges, and health information networks).

In this proposed rule, HHS proposes to establish the following disincentives for health care providers that have been determined by OIG to have committed information blocking and for which OIG refers its determination to the Centers for Medicare & Medicaid Services (CMS):

• Under the 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.
• Under the 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.
• Under the 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 health care provider being removed from an ACO or prevented from joining an ACO.

“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.” To ensure appropriate sharing and the protection of patient privacy and preferences, the information blocking regulations include exceptions, such as the Privacy Exception.

Earlier this year, OIG published a final rule to establish civil money penalties authorized by the Cures Act that applies to health IT developers of certified health IT, entities offering certified health IT, health information exchanges, and health information networks. If OIG determines that one of these entities has committed information blocking, they may be subject to up to a $1 million penalty per violation.

The Office of the National Coordinator for Health Information Technology (ONC) and CMS will host an information session about the proposed rule in the coming weeks. More information can be found at https://www.healthit.gov/disincentivesrule and via ONC’s X account, @ONC_HealthIT .

The proposed rule is on display at the Office of the Federal Register’s website. It will publish in the Federal Register on November 1, 2023, at which point it will be available for public comment for 60 days. In the proposed rule, HHS also requests information from the public on disincentives that could be established in the future for health care providers. To be assured consideration, written or electronic comments must be received via the Federal Register no later than 11:59 p.m. ET on January 2, 2024.