HHS Proposes Rule to Establish Disincentives for Health Care Providers That Have Committed Information Blocking

What You Should Know: 

– The U.S. Department of Health and Human Services (HHS) released a proposed rule for public comment that would establish disincentives for healthcare 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 released today complements OIG’s rule that established information-blocking penalties for the other actors identified by Congress (health information technology (IT) developers of certified health IT or other entities offering certified health IT, health information exchanges, and health information networks). 

Proposed Disincentives for ProvidersThat Have Committed Information Blocking 

HHS proposes to establish the following disincentives for healthcare 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 healthcare 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 healthcare provider being removed from an ACO or prevented from joining an ACO. 

“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,” said HHS Secretary Xavier Becerra. “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. 

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