Xavier Becerra, Secretary and Deputy Secretary & Andrea Palm, Deputy Secretary | https://www.hhs.gov/about/leadership/xavier-becerra.html https://www.hhs.gov/about/leadership/andrea-palm.html
The U.S. Department of Health and Human Services (HHS) today released a final rule establishing disincentives for health care providers that have committed information blocking. This rule exercises the Secretary’s authority under the 21st Century Cures Act (Cures Act) to set “disincentives” for providers who engage in practices that they knew were unreasonable and likely to interfere with, prevent, or materially discourage the access, exchange, or use of electronic health information (EHI), except as required by law or covered by a regulatory exception.
“This final rule is designed to ensure we always have access to our own health information and that our care teams have the benefit of this information to guide their decisions. With this action, HHS is taking a critical step toward a health care system where people and their health providers have access to their electronic health information,” said HHS Secretary Xavier Becerra. “When health information can be appropriately accessed and exchanged, care is more coordinated and efficient, allowing the health care system to better serve patients. But we must always take the necessary actions to ensure patient privacy and preferences are protected – and that’s exactly what this rule does.”
HHS has established several disincentives for providers found by the HHS Office of Inspector General (OIG) to have committed information blocking and referred by OIG to the Centers for Medicare & Medicaid Services (CMS):
Under the Medicare Promoting Interoperability Program, an eligible hospital or critical access hospital (CAH) that has committed information blocking will not be considered a meaningful electronic health record (EHR) user during the calendar year of the EHR reporting period in which OIG refers its determination to CMS. If deemed not a meaningful EHR user, hospitals will lose three-quarters of their annual market basket increase for successful program participation; CAHs will see payment reduced to 100 percent of reasonable costs instead of 101 percent. This disincentive takes effect 30 days after publication of the final rule.
Under the Promoting Interoperability performance category of the Merit-based Incentive Payment System (MIPS), a MIPS eligible clinician who has committed information blocking will not be recognized as a meaningful EHR user during the calendar year when OIG refers its determination to CMS. Such clinicians will receive a zero score in MIPS Promoting Interoperability performance category, typically constituting a quarter of their total final score unless an exception applies. The policy clarifies that if an individual clinician commits information blocking and reports as part of a group, only they face this disincentive. This measure also takes effect 30 days post-publication.
Under the Medicare Shared Savings Program, an Accountable Care Organization (ACO), ACO participant, or ACO provider or supplier committing information blocking may face at least one year of ineligibility from program participation. Consequently, they might lose potential revenue from Shared Savings Program earnings. CMS will consider various factors before applying such disincentives under this program starting January 1, 2025.
Additional disincentives may be established through future rulemaking.
This HHS final rule complements OIG’s June 2023 final rule imposing penalties on non-provider actors involved in information blocking per Cures Act provisions—health IT developers offering certified IT, health information exchanges, and networks—with fines up to $1 million per violation.
The Office of the National Coordinator for Health Information Technology (ONC) and CMS will host an informational session about this final rule on June 26, 2024 at 2pm ET. More details are available at healthit.gov/informationblocking and via ONC’s X account @ONC_HealthIT.
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