The Department of Health and Human Services has released a proposed rule that would establish monetary disincentives for healthcare providers found to have committed information blocking. The rule, which has a 60-day comment period, would apply to providers who knowingly and unreasonably interfere with the access, exchange, or use of electronic health information, except as required by law or covered by a regulatory exception.
Information blocking refers to the practice of interfering with the access, exchange, or use of electronic health information, and the proposed rule would give the HHS Office of Inspector General the authority to refer providers who commit information blocking to the Centers for Medicare and Medicaid Services for disincentives.
Disincentives for Information Blocking
Providers who are determined to have committed information blocking could face disincentives in several programs, including the Medicare Promoting Interoperability program, the Quality Payment Program, and the Medicare Shared Savings Program. For example, eligible hospitals or critical access hospitals that commit information blocking would not be considered meaningful electronic health record users and could lose 75% of their annual market basket increase.
MIPS clinicians or groups that commit information blocking would receive a zero score in the Promoting Interoperability performance category of MIPS, which could significantly impact their total MIPS score. Additionally, healthcare providers that are part of an Accountable Care Organization could be deemed ineligible to participate in the program for at least one year if they commit information blocking.
The proposed rule is part of a larger effort to improve the flow and exchange of electronic health information, which was a key element of the 21st Century Cures Act signed into law in 2016. The act aimed to advance interoperability, prohibit information blocking, and enhance the accessibility and security of health information technology.
Background on Information Blocking
In April 2021, healthcare providers were mandated to share electronic patient records and other information as defined under regulations set forth as part of the 21st Century Cures Act. The definition of Electronic Health Information for the purposes of information blocking was initially limited to what existed in the United States Core Data for Interoperability version 1, but was expanded in October 2022 to include all electronically available health information.
The Office of the National Coordinator for Health Information Technology designated eight exceptions to information blocking, which are divided into two categories: exceptions that involve not fulfilling requests to access, exchange, or use Electronic Health Information, and exceptions that involve procedures for fulfilling requests to access, exchange, or use Electronic Health Information.
Comment Period and Next Steps
The proposed rule is open for comment until January 2, 2024.
They will host an information session on November 15 to discuss the rule.
HHS is seeking information from the public on disincentives that could be established in the future for healthcare providers who commit information blocking.
HHS Secretary Xavier Becerra stated that the department 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.
“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.”
Earlier this year, the OIG released a final rule establishing civil money penalties for health IT developers of certified health IT, entities offering certified health IT, health information exchanges, and health information networks that commit information blocking.
These entities may be subject to up to a $1 million penalty per violation.
Beginning in April 2021, healthcare providers were mandated to share electronic patient records and other information as defined under regulations set forth as part of the 21st Century Cures Act. This included hospitals, electronic health record (EHR) vendors, health information exchanges (HIE) and health information networks (HIN) that became subject to Office of the National Coordinator for Health Information Technology’s regulations.
A key element of the 21st Century Cures Act that was signed into law in 2016 was to improve the flow and exchange of electronic health information by advancing interoperability, prohibiting information blocking and enhancing the accessibility and security of health information technology.