Federal Rule Seeks To Discourage Information Blocking by Healthcare Providers

The US Department of Health and Human Services (HHS) on Oct. 30 issued a proposed rule to create disincentives for healthcare providers found by federal officials to have committed information blocking of electronic health information.

The proposal calls for establishing disincentives for certain healthcare providers through several existing Centers for Medicare and Medicaid Services (CMS) programs. The HHS Office of Inspector General (OIG) would determine which providers took part in information blocking after completing an investigation process.

Offending providers would face the following disincentives:

• In 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. Eligible hospitals would lose 75 percent of the annual market basket increase, and payment for the CAHs 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 receive a zero score in the performance category. The category score can be a quarter of a clinician or group’s total MIPS score in a year. 
• A healthcare provider that is an accountable care organization (ACO), ACO participant, or ACO provider or supplier would be deemed ineligible to participate in the Medicare Shared Savings Program for at least one year. The healthcare provider might also be removed from an ACO or prevented from joining an ACO. 

“We are pleased to see HHS release details on how providers engaged in information blocking may be penalized,” says AHIMA Director of Regulatory Affairs Andrew Tomlinson. “We look forward to reviewing the proposed rule and seeing how it can provide better predictability and certainty related to the information blocking complaint, investigation, and penalty process.”

Federal officials say the proposed rule complements an OIG rule finalized in June that implemented information blocking penalties for health information exchanges, health information networks, and developers of certified health IT. That rule spells out penalties created by the 21^st Century Cures Act and outlines the process for investigating information blocking claims. Any non-provider actor who commits information blocking faces penalties up to a $1 million per violation.

On Nov. 15, the Office of the National Coordinator for Health Information Technology (ONC) and CMS will host an information session about the proposed rule. The rule will be published online on Nov. 1 in the Federal Register and be available for public comment through Jan. 2, 2024.

“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,” says HHS Secretary Xavier Becerra.

Damon Adams is content production editor for AHIMA.