HHS Proposes Information Blocking Disincentives To Complement Existing Penalties – Healthcare

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On Nov. 1, 2023, the Department of Health and Human Services
(HHS), the Centers for Medicare & Medicaid Services (CMS) and
the Office of the National Coordinator (ONC) issued a proposed rule, the “21st Century Cures
Act: Establishment of Disincentives for Health Care Providers That
Have Committed Information Blocking.”

The proposed rule applies to Medicare-enrolled healthcare
providers (including entities and individuals) and is aimed at
disincentivizing healthcare providers from committing information
blocking. If finalized, the proposed rule would complement the HHS
and the Office of Inspector General’s (OIG) Sept. 3, 2023, final rule, which established information
blocking penalties for health information technology (IT)
developers of certified health IT, entities offering certified
health IT, health information exchanges and health information
networks (the “health IT final rule”).

Read on for an overview of how the Proposed Rule would
disincentivize health care providers from committing information

Information Blocking

As defined under 45 CFR 171.103, “information
blocking” means acts (i) that are likely to interfere with
access, exchange or use of electronic health information; and (ii)
that a healthcare provider knows are unreasonable and likely to
interfere with access, exchange or use of electronic health

As HHS Secretary Xavier Becerra expressed, the proposed rule, much like the
Health IT final rule, aims to “discourage information blocking
to help people and the health providers they allow to have access
to their electronic health information.” As an expression of
how seriously governmental authorities are committed to ensuring
access to electronic health information, violations of the health
IT final rule may be subject to a penalty of up to $1 million per
violation. While the proposed rule does not include hefty civil
monetary penalties, healthcare providers that OIG determines have
committed information blocking may be subject to various
disincentives as described below.

Disincentives for Healthcare Providers

Medicare-enrolled healthcare providers that OIG determines have
committed information blocking would be subject to various
disincentives, some of which are specific to provider type:

  1. Under the Medicare Promoting Interoperability Program, a
    hospital or critical access hospital (CAH) would no longer be a
    meaningful electronic health record (EHR) user in an applicable EHR
    reporting period. This would mean that any such hospital or CAH
    would not be able to earn 75% of the annual market basket increase
    associated with qualifying as a meaningful EHR user.

  2. Under the Promoting Interoperability performance category of
    the Merit-based Incentive Payment System (MIPS), an eligible
    clinician or group would no longer be a meaningful EHR user during
    a performance period. A MIPS-eligible clinic would also receive a
    “zero” score in the Promoting Interoperability
    performance category of MIPS. This score typically represents 25%
    of a clinician or group’s total MIPS score in a year.

  3. Under the Medicare Shared Savings Program, an accountable care
    organization (ACO), ACO participant or ACO provider or supplier
    would be barred from participating in the Shared Savings Program
    for a minimum of one year.

In addition to the above, information regarding healthcare
providers subject to disincentives would be posted and publicly
available on ONC’s website to “promote transparency”
for the public. The published information would include the
healthcare provider’s name, business address, the violative
information blocking practice, the disincentive(s) applied and
where to find additional information, if relevant.

How OIG Will Investigate Information Blocking

OIG will use four criteria to guide its investigations of
healthcare providers alleged to have committed information
blocking. These criteria shed light on the kinds of allegations OIG
is more likely to investigate and its priorities in enforcing the
proposed rule if finalized as proposed.

OIG will assess whether the information blocking conduct:

  1. Will result in, cause, or have the potential to cause patient

  2. Significantly impacted a provider’s ability to care for

  3. Occurred for an extended period of time; and

  4. Caused financial loss to Federal health care programs, or other
    government or private entities.

OIG welcomes comments regarding the four criteria used to
evaluate information blocking conduct, including whether there are
issues specific to information blocking that warrant either
revising these criteria or incorporating additional criteria. OIG
also invites comments regarding what additional information, if
any, should be posted to ONC’s website following a
determination that a healthcare provider has committed information
blocking. The comment period will close Jan. 2, 2024.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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