New Rule Creates Penalties for Healthcare Providers Involved in Information Blocking

A new federal rule has established disincentives for hospitals, physicians, and other healthcare providers that commit information blocking.

The penalties apply to healthcare providers who are found to knowingly and unreasonably interfere with the access, exchange, or use of electronic health information (EHI).

“Much of the health system has been waiting and preparing for the implementation of these disincentives and now have more certainty in how to move forward,” says AHIMA Senior Director of Regulatory & International Affairs Andrew Tomlinson. “Providers nationwide have a clearer view of the path forward, but still need assistance when it comes to understanding the nuances and realities of real-world information blocking compliance. This phase of the information blocking program should help bring further understanding in the years to come.”

The rule, released on June 24 by the US Department of Health and Human Services (HHS), creates disincentives for healthcare providers found by the HHS Office of Inspector General (OIG) to have committed information blocking and referred by OIG to the Centers for Medicare and Medicaid Services (CMS). The disincentives are:

• Under the Medicare Promoting Interoperability Program, an eligible hospital or critical access hospital (CAH) that commits information blocking will not be a meaningful electronic health record (EHR) user in an applicable EHR reporting period. The impact on eligible hospitals will be a reduction of three quarters of the annual market basket update. For CAHs, payment will 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), a MIPS-eligible clinician that commits information blocking will not be a meaningful user of certified EHR technology in a performance period and will receive a zero score in the Promoting Interoperability performance category of MIPS. If a clinician participating in group reporting commits information blocking, they will be subject to a referral by OIG, not the group. 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, an accountable care organization (ACO), ACO participant, or ACO provider or supplier who has committed information blocking may be ineligible to participate in the program for at least one year. As a result, the healthcare provider may not receive revenue they might otherwise have earned through the program.

The rule also says that information blocking violators will have information and a summary of the judgment/violation practice posted publicly. The rule will be published in the Federal Register on July 1 and then take effect July 31. Additional disincentives may be established in future rulemaking.

“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 healthcare system where people and their health providers have access to their electronic health information,” HHS Secretary Xavier Becerra says. “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.”

Federal officials say the rule complements a June 2023 rule that implemented information blocking penalties of up to $1 million per violation for health information exchanges and networks, and developers of certified health IT.

Tomlinson says healthcare providers should already be in compliance with information blocking policies as the applicability date for information blocking has already passed. Those still working through compliance activities can use the following AHIMA resources to assist in their preparations:

• FAQ Information Blocking Enforcement Final Rule
• AHIMA/AMIA/EHRA Joint Report on Operationalizing the Definition of EHI
• AHIMA EHI Training Series: Getting Ready for Compliance

Damon Adams is content production editor for AHIMA.