HHS announces penalties for information blocking

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The federal government wants to crack down on information blocking by health care providers.

Last week the U.S. Department of Health and Human Services (HHS) announced a proposed rule that would allow the Office of the Inspector General to penalize providers who have engaged in information blocking. HHS defines information blocking as knowingly and unreasonably interfering with “the access, exchange, or use of electronic health information except as required by law or covered by a regulatory exception.”

Micky Tripathi, Ph.D., M.P.P. national coordinator for health information technology (ONC) at HHS and Jonathan Blum, principal deputy administrator and chief operating officer at the Centers for Medicare & Medicaid Services, explained in a blog post that the rule stems from the 21st Century Cures Act. That law, enacted in 2016, directs the secretary of HHS to penalize health care providers who engage in information blocking and define what practices don’t constitute information blocking.

According to Tripathi and Blum, the entities or organizations covered by the rule and the “disincentives” (penalties) they would face for engaging in information blocking include:

• Eligible hospitals and critical access hospitals (CAHs) would not be recognized as meaningful EHR users during an applicable EHR reporting period. For eligible hospitals that would mean a loss of 75% of the annual market basked increase. CAHs would see their payments reduced from 101% to 100% of reasonable costs associated with program participation. While the amount of the disincentive would depend on the hospital’s Medicare payments, the proposed rule could result in a median disincentive of more than $393,000, they write.
• An eligible clinician or group found to engage in information blocking would lose their meaningful user of certified EHR technology status during a performance period, resulting in a zero score under the promoting interoperability performance category of the Merit-based Incentive Payment System (MIPS), which typically comprises about a quarter of the total MIPS score. ONC estimates that median penalties could range from $686 for an individual clinician to $4,116 for a group of six clinicians.
• An Accountable Care Organization (ACO), ACO participant or ACO provider/supplier would lose their eligibility to participate as, or in, an ACO for at least one year. “Restricting the ability of health care providers to participate in the [Medicare] Shared Savings Program for at least 1 year would result in these health care providers potentially not receiving revenue that they might otherwise have earned if they had participated in the Shared Savings Program,” Tripathi and Blum write.

“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,” HHS Secretary Xavier Becerra said in announcing the proposed rule. “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.”

Public comment on the proposed rule is now open and will continue until January 2, 2024. HHS said it will begin enforcing the provider penalties once the proposed rule is finalized.