Financial disincentives for providers who commit information blocking

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O Department of Health and Human Services released a final rule on information blocking.

The rule establishes disincentives for health care providers to engage in practices that they know are unreasonable and likely to materially interfere with, prevent, or discourage access to, exchange of, or use of electronic health information (EHI), except as required by law or covered by a regulatory exception.

This final rule exercises the HHS Secretary’s authority under the 21st Century Cures Act.

“This final rule is designed to ensure that we always have access to our own health information and that our health care teams have the benefit of this information to guide their decisions. With this action, HHS is taking a critical step toward a healthcare system where people and their healthcare providers have access to their electronic health information,” said HHS Secretary Xavier Becerra. “When health information can be accessed and exchanged appropriately, care is more coordinated and efficient, allowing the healthcare system to better serve patients. But we must always take the necessary steps to ensure that patients’ privacy and preferences are protected – and that is exactly what happens. rule does.”

WHY DOES IT MATTER

HHS has established the following disincentives for health care providers deemed by the HHS Office of Inspector General to have engaged in information blocking and who have been referred by the EIG to the Centers for Medicare and Medicaid Services:

• Under the Medicare Interoperability Promotion Program, an eligible hospital or critical access hospital who has committed information blocking and is referred to CMS by the OIG will not be a significant user of electronic health records during the calendar year of the EHR reporting period in which the OIG forwards its determination to CMS. If the eligible hospital is not a significant user of the EHR, the eligible hospital will not be able to earn three-quarters of the annual basket increase that it would have been able to earn through successful participation in the program; for CAHs, payment will be reduced to 100% of reasonable costs instead of 101%. This disincentive will come into effect 30 days after the publication of the final rule.
• In the Promoting Merit-Based Incentive Payment System (MIPS) Interoperability performance category, a MIPS-eligible physician (including a group practice) who has engaged in information blocking will not be a significant user of the EHR during the calendar year of the performance period in which OIG submits its determination to CMS. If the MIPS-eligible physician is not a significant EHR user, he or she will receive a score of zero in the MIPS Promoting Interoperability performance category. The MIPS Promoting Interoperability Performance Category score is typically one-fourth of an individual MIPS-eligible physician’s total final score in a MIPS performance period/payment year, unless an exception applies and the eligible physician for MIPS is not required to report measures for the performance category. CMS has modified its policy for this disincentive to clarify that if an eligible individual physician is found to have committed information blocking and is referred to CMS, the disincentive under the MIPS Interoperability Promotion performance category will only apply to the individual, even if the provider reports as part of a group. This disincentive will come into effect 30 days after the publication of the final rule.
• Under the Medicare Shared Savings Program, a health care provider who is a Responsible care The organization, ACO participant, or ACO provider or supplier that committed information blocking may be ineligible to participate in the program for a period of at least one year. As a result, the provider may not receive income that it otherwise could have earned through the Shared Savings Program. CMS also finalized this rule that will consider relevant facts and circumstances (such as the time elapsed since the information blocking conduct, the healthcare provider’s diligence in identifying and correcting the problem, whether the provider was previously subject to a disincentive in another program, etc.) before applying a disincentive under the Shared Savings Program. This disincentive will take effect 30 days after the publication of the final rule; however, any disincentive under the Shared Savings Program would be imposed after January 1, 2025.

Additional disincentives may be established through future regulations.

THE BIGGEST TREND

CMS released a proposed rule on information blocking penalties in October 2023.

This HHS final rule complements the June 2023 OIG final rule that established penalties for actors who block information other than health care providers as identified in the Cures Act (health information Technology certified health IT developers or other entities offering certified health IT, health information exchange, and health information networks).

If the OIG determines that any of these individuals or entities have committed information blocking, they may be subject to a civil monetary penalty of up to $1 million per violation.

ON REGISTRATION

MGMA Senior Vice President of Government Affairs Anders Gilberg said, “While MGMA recognizes the need to establish appropriate disincentives for healthcare providers who commit information blocking, we are disappointed that the administration chose by advancing significant administrative and financial penalties under existing Medicare quality programs Medical groups already face numerous difficulties reporting under MIPS, and by imposing a zero-point penalty in the Promoting Interoperability category, this rule ensures that groups are likely to be in violation. will receive a negative payment adjustment for each Medicare claim for a full payment year that HHS could have chosen to work with providers to implement corrective action plans, but instead finalized unnecessary punitive penalties that will financially harm practices. and will negatively impact Medicare patients. Preventing practices and ACOs from participating in the MSSP goes against the transition to value-based care and harms providers’ capacity. within the ACO structure to be successful.”

Send an email to the writer: SMorse@himss.org

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