Monday, July 15, 2024

Health Care Focus: HHS Finalizes Rule to Establish Disincentives for Providers Committing Information Blocking

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Health care providers found to have committed information blocking will face new disincentives, as outlined in a final rule released by the U.S. Department of Health and Human Services (HHS). This rule, exercising the Secretary’s authority under the 21st Century Cures Act (Cures Act), aims to address practices that unreasonably interfere with, prevent, or materially discourage the access, exchange, or use of electronic health information (EHI), except when required by law or covered by a regulatory exception.

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

Health Care Providers Face New Disincentives Under HHS Final Rule on Information Blocking

The HHS final rule introduces several disincentives for health care providers found by the HHS Office of Inspector General (OIG) to have committed information blocking and referred to the Centers for Medicare & Medicaid Services (CMS):

Eligible hospitals or critical access hospitals (CAHs) committing information blocking will not be considered meaningful electronic health record (EHR) users during the EHR reporting period in which OIG refers its determination to CMS. As a result, these hospitals will not earn three-quarters of the annual market basket increase for successful program participation. For CAHs, payment will be reduced to 100 percent of reasonable costs instead of 101 percent. This disincentive becomes effective 30 days after the publication of the final rule.

health care

Health Care Providers: MIPS Clinicians Penalized for Information Blocking Under New HHS Rule

MIPS eligible clinicians, including group practices found to have committed information blocking, will not be considered meaningful EHR users during the performance period in which OIG refers its determination to CMS. Consequently, they will receive a zero score in the MIPS Promoting Interoperability performance category, which typically accounts for a quarter of their total final score in a performance period/MIPS payment year. The disincentive will apply only to the individual clinician found to have committed information blocking, even if they report as part of a group. This disincentive will be effective 30 days after the publication of the final rule.

Health care providers that are Accountable Care Organizations (ACOs), ACO participants, or ACO providers or suppliers found to have committed information blocking may be ineligible to participate in the program for at least one year. This ineligibility means they may not receive revenue they might have earned through the Shared Savings Program. CMS will consider relevant facts and circumstances before applying a disincentive under this program. This disincentive will be effective 30 days after the publication of the final rule, with any disincentive imposed after January 1, 2025.

This HHS final rule complements the OIG’s final rule from June 2023, which established penalties for information blocking actors other than health care providers, such as health information technology (IT) developers of certified health IT, health information exchanges, and health information networks. These entities, if found to have committed information blocking, may be subject to a civil monetary penalty of up to $1 million per violation.

The implementation of these disincentives underscores HHS’s commitment to ensuring that health care providers facilitate appropriate access, exchange, and use of EHI, enhancing the efficiency and coordination of patient care. By penalizing information blocking, HHS aims to create a more transparent and accessible health care system that prioritizes patient privacy and preferences while improving overall health outcomes. This rule represents a critical step in fostering a health care environment where electronic health information is readily available to patients and providers, ultimately leading to better, more informed care decisions.

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Resource: Health and Human Services, June 24, 2024

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