The Department of Health and Human Services has released a final rule on information blocking, establishing disincentives for healthcare providers who engage in practices that interfere with the access, exchange, or use of electronic health information (EHI).
This final rule exercises the HHS secretary’s authority under the 21st Century Cures Act.
Disincentives for Healthcare Providers
According to the filing, HHS has established the following disincentives for healthcare providers found to have committed information blocking: under the Medicare Promoting Interoperability Program, an eligible hospital or critical access hospital that has committed information blocking will not be a meaningful electronic health record user during the calendar year of the EHR reporting period.
This means the eligible hospital will not be able to earn three quarters of the annual market basket increase they would have been able to earn for successful program participation; for critical access hospitals, payment will be reduced to 100% of reasonable costs instead of 101%.
Impact on Medicare Payments
Under the Promoting Interoperability performance category of the Merit-based Incentive Payment System (MIPS), a MIPS eligible clinician which has committed information blocking will not be a meaningful EHR user during the calendar year of the performance period.
If the MIPS eligible clinician is not a meaningful EHR user, then they will receive a zero score in the MIPS Promoting Interoperability performance category, which is typically a quarter of an individual MIPS eligible clinicians’ total final score in a performance period/MIPS payment year.
CMS has modified its policy for this disincentive to clarify that if an individual eligible clinician is found to have committed information blocking and is referred to CMS, the disincentive under the MIPS Promoting Interoperability performance category will only apply to the individual, even if the provider reports as part of a group.
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Additional Disincentives
Under the Medicare Shared Savings Program, a healthcare provider that is an Accountable Care Organization, ACO participant, or ACO provider or supplier who has committed information blocking may be ineligible to participate in the program for a period of at least one year.
Consequently, the provider may not receive revenue that they might otherwise have earned through the Shared Savings Program.
CMS also finalized in this rule that it will consider the relevant facts and circumstances before applying a disincentive under the Shared Savings Program.
HHS Secretary Xavier Becerra said, “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.”
The rule will be effective 30 days after publication.
In the context of the 21st Century Cures Act, this rule is designed to ensure access to electronic health information and prevent practices that interfere with this access.