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Discouraging Information Blocking: Government Issues Proposed Rule

December 6, 2023

He’s coming right at you. A 295-pound defensive end who is attempting to bull rush you on the inside gap; and all that stands between him and your franchise quarterback is you. Blocking is one of the essentials of American football. It’s considered a major asset for those who can execute it well. But blocking, in some contexts, is a definite no-no and could wind up actually costing you.

A few weeks ago, the U.S. Department of Health and Human Services (HHS) published a proposed rule that would establish disincentives for healthcare entities and individual providers determined by HHS’ Office of Inspector General (OIG) to have committed “information blocking.” The OIG describes this term as occurring “when a provider knowingly and unreasonably interferes with the access, exchange, or use of electronic health information except as required by law or covered by a regulatory exception.”

Proposed Penalties

The proposed rule implements the HHS Secretary’s authority under section 4004 of the 21st Century Cures Act (Cures Act) and acts to complement the OIG’s rule that established information blocking penalties for the other actors previously identified by Congress. These include health information technology (IT) developers of certified health IT or other entities offering certified health IT, health information exchanges, and health information networks. Specifically, the OIG’s final rule establishes civil money penalties authorized by the Cures Act that applies to these IT entities. According to an HHS press release, if the OIG determines that one of these entities has committed information blocking, it may be fined up to $1 million per violation. Again, this is based on an earlier OIG final rule.

Now, back to the HHS proposed rule. In it, the federal department seeks to establish certain disincentives for healthcare organizations, such as hospitals, as well as for individual practitioners, who have been determined by the OIG to have engaged in information blocking. The OIG is then to refer such organizations and individuals to the Centers for Medicare & Medicaid Services (CMS). Upon receiving a referral, CMS will be empowered to perform the following disciplinary actions:

  • Under the Medicare Promoting Interoperability Program, an eligible hospital or critical access hospital (CAH) would be deemed to not be a meaningful electronic health record (EHR) user in an applicable EHR reporting period. The impact on eligible hospitals would be the loss of 75 percent of the annual market basket increase; for CAHs, payment would be reduced to 100 percent of reasonable costs.
  • Under the Promoting Interoperability performance category of the Merit-based Incentive Payment System (MIPS), an eligible clinician or medical group would be held to not be a meaningful user of certified EHR technology in a performance period and would therefore receive a zero score in the Promoting Interoperability performance category of MIPS, if required to report on that category. According to the HHS press release on the proposed rule, “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, a healthcare provider in an Accountable Care Organization (ACO), ACO participant, or ACO provider or supplier would be deemed ineligible to participate in the program for a period of at least one year. This may result in a healthcare provider being removed from an ACO or prevented from joining an ACO.

Of course, HHS is only getting started with these proposed punishments.  The proposed rule includes an appeal to the general healthcare community for additional ideas on disincentives that would apply to those not impacted by the rule as currently proposed. Translation: there may be more disincentives in the final rule or future rulemaking.

Rationale and Response

Obviously, HHS believes it is off to a good start with these proposed provisions. According to HHS Secretary Xavier Becerra:

HHS 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.

To ensure appropriate sharing and the protection of patient privacy and preferences, the information blocking regulations include exceptions, such as the privacy exception.

The proposed rule was published in the Federal Register on November 1, 2023. It remains available for public comment via the Federal Register, but comments must be submitted no later than 11:59 p.m. ET on January 2, 2024.

With best wishes,

Chris Martin
Senior Vice President—BPO

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