Consequences for Information Blocking

New Proposals to Establish Disincentives for Health Care Providers

By Micky Tripathi and Jonathan Blum, ONC
X: @ONC_HealthIT
X: @mickytripathi1

A new proposed rule released today by the U.S. Department of Health and Human Services (HHS) details HHS’ first steps for holding health care providers accountable for information blocking under the 21st Century Cures Act (Cures Act). Specifically, the “21st Century Cures Act: Establishment of Disincentives for Health Care Providers That Have Committed Information Blocking” proposed rule proposes to establish a department-wide regulatory framework for managing disincentives and proposes an initial set of appropriate disincentives in Centers for Medicare & Medicaid Services (CMS) programs. If finalized, the initial set of disincentives would apply to certain health care providers that have been found to have committed information blocking by the HHS Office of Inspector General (OIG) and for which OIG refers its determination to CMS. Additional disincentives may be proposed in the future.

Information Sharing is Expected

Thanks to a variety of technological, business, and policy advances making interoperable electronic health record (EHR) systems widely available among hospitals and physician offices, most health information is now digital, accessible, and shareable. Not only does this let patients and their caregivers be more engaged in their care, it also allows for more seamless connectivity and exchange across all health care providers and payers. For example, patients cannot successfully transition home after an inpatient hospital stay unless all parts of the health care system work together to provide the supports that are often required.

However, as ONC outlined in an April 2015 report to Congress, an increasing trend, then known only colloquially as information blocking, was on the rise. In fact, complaints and other evidence received by ONC at that time indicated that some persons and entities were exercising control over electronic health information in ways that limited its availability for access, exchange, and use.

Congress took action in 2016 with the 21st Century Cures Act (Cures Act), which, among other things, established that sharing electronic health information is the expected norm in health care. The Cures Act directed the secretary of health and human services to establish appropriate disincentives for health care providers that commit information blocking and to establish defined, allowable exceptions where practices do not constitute information blocking. If finalized, this proposed rule would implement such appropriate disincentives.

What Proposals are Included?

The proposals would establish disincentives for certain health care providers through several existing CMS programs [PDF – 167 KB], consistent with the Cures Act’s requirement for the secretary to establish disincentives using applicable Federal law. A health care provider that committed information blocking as determined by OIG would be subject to all disincentives applicable to that health care provider. OIG enforcement, already in place for other actors as of September 1, 2023, would begin for providers upon finalization of this proposed rule.

Specifically, the proposed rule has the following proposals:

  • Medicare Promoting Interoperability Program: A determination of information blocking by an eligible hospital or critical access hospital (CAH) that OIG refers to CMS would result in the eligible hospital or CAH not being a meaningful EHR user in an applicable EHR reporting period. An eligible hospital would lose 75 percent of the annual market basket increase, while a CAH subject to the disincentive would have payments reduced to 100 percent of reasonable costs instead of the 101 percent of reasonable costs associated with successful participation. For eligible hospitals, estimates provided in the proposed rule to illustrate the potential impact of the proposed disincentive show that, while the amount of the disincentive would depend on an eligible hospital’s Medicare payments, this proposal could result in a median disincentive amount of $394,353. More details on the estimates and underlying assumptions can be found in the proposed rule.
  • Quality Payment Program: A determination of information blocking by an eligible clinician would result in the eligible clinician not being a meaningful user of certified EHR technology in a performance period and therefore receiving a zero score in the Promoting Interoperability performance category of the Medicare Merit-based Incentive Payment System (MIPS), typically a quarter of the total MIPS score. Our estimates illustrate that the median individual disincentive amount could be a loss of $686 for an eligible clinician, while an estimated median group of six clinicians could see a loss of $4,116, with a range of $1,372 to $165,326 for group sizes ranging from two to 241 clinicians (the estimated 2.5th to 97.5th percentile of group sizes). Again, more details on the estimates and underlying assumptions can be found in the proposed rule.
  • Medicare Shared Savings Program: A determination of information blocking would result in a health care provider that is an accountable care organization (ACO), ACO participant, or ACO provider/supplier being deemed ineligible to participate as, or in, an ACO for at least one year. Restricting the ability of health care providers to participate in the 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.

The proposed rule also includes transparency provisions for all actors covered by the information blocking regulations. The transparency proposal builds on information already available on ONC’s website about claims of information blocking by proposing to include information about information blocking determinations by OIG, including identifying the information blocking practices, actors who committed information blocking, and any settlements of liability, civil money penalties levied, and disincentives administered.

Next Steps

On November 15, 2023, ONC and CMS will host an information session on the proposed rule. You can also check out our website where you can access fact sheets and other resources, and sign up for the information session.

We invite your comments and look forward to hearing feedback on the proposed rule. The comment period will open on November 1, 2023 and will run until January 2, 2024 at 11:59 pm ET.

Read the proposed rule.

This article was originally published on the Health IT Buzz and is syndicated here with permission.