Knowledge Center

The U.S. Department of Health and Human Services (HHS) has released a proposed rule for public comment that would establish disincentives for health care providers found by the HHS Office of Inspector General (OIG) to have committed information blocking – 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. The proposed rule implements the HHS Secretary’s authority under section 4004 of the 21st Century Cures Act (Cures Act). ONC, led by Deputy Director Steven Posnack, conducted a call Oct. 30 for stakeholders and walked through the key components of the proposed rule.

HHS proposes to establish the following disincentives for health care providers that have been determined by OIG to have committed information blocking and for which OIG refers its determination to the Centers for Medicare & Medicaid Services (CMS):

• Under the Medicare Promoting Interoperability Program, an eligible hospital or critical access hospital (CAH) would 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 instead of 101 percent.
• Under the Promoting Interoperability performance category of the Merit-based Incentive Payment System (MIPS), an eligible clinician or group would 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. 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 health care provider that is 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 health care provider being removed from an ACO or prevented from joining an ACO.

ONC discussed that the proposed rule will be available for public comment for 60 days. In the proposed rule, HHS also requests information from the public on disincentives that could be established in the future, with emphasis on those health care providers that do not participate in CMS payment programs. They are also proposing to make public on an HHS website those providers that have been deemed to have blocked information, what the action was, and any settlement.

ONC indicated they will be discussing the rule at the next HITAC meeting on Nov. 9 and has plans for a webinar on the subject Nov. 15. Posnack also indicated that ONC continues to request authority to issue information blocking “advisory opinions” but that no authority to do so has yet been granted.

Comments must be received no later than 11:59 p.m. ET on January 2, 2024. Access the HHS fact sheet for additional information.