HHS Final Rule: Information Blocking Penalties – Hospitals, Clinicians & ACOs

This week the U.S. Department of Health and Human Services (HHS) released a final rule that establishes disincentives for healthcare providers who have committed information blocking. The new rule sets penalties for hospitals, clinicians participating in MIPS and accountable care organizations (ACOs) in the Medicare Shared Savings Program (MSSP).

Information blocking is a practice by an “actor” that is likely to interfere with the access, exchange, or use of electronic health information (EHI), except as required by law or specified in an information blocking exception. An ACO participant, provider, or supplier found guilty of information blocking may be barred from participating in the MSSP for a minimum of one year.

HHS Secretary Xavier Becerra,

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 healthcare system where people and their health providers have access to their electronic health information.

The new rule complements an  Office of Inspector General  rule published last summer establishing penalties for information blocking by health IT developers of certified health IT, and health information exchanges (HIEs)/health information networks (HINs). If developers, as well as the networks and exchanges, were found guilty of information blocking, they would be potentially liable for certain types of civil monetary penalties of up to $1 million per violation.

The Cures Act defines two distinct “knowledge” standards for information blocking:

• Health IT Developers, HIEs, and HINs
  These entities are subject to a standard where they must know, or should know, that their practices are likely to interfere with the access, exchange, or use of electronic health information (EHI).
• Healthcare Providers
  Providers are held to a standard where they must know that their practices are unreasonable and likely to interfere with the access, exchange, or use of EHI.

Understanding these standards is crucial to ensure compliance and promote seamless information sharing within the healthcare system. Under the new rule, HHS  established the following disincentives for healthcare providers found by the OIG to have committed information blocking. Disincentives are effective 30 days after publication of the final rule with the exception of the deterrent for MSSP ACOs which is effective after January 1, 2025.

Hospitals

• Under the Medicare Promoting Interoperability Program, an eligible hospital or critical access hospital (CAH) that has committed information blocking and is referred to CMS by OIG will not be 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 the eligible hospital is not a meaningful EHR user, the eligible hospital will not be able to earn three quarters of the annual market basket increase they would have been able to earn for successful program participation; for CAHs, payment will be reduced to 100% of reasonable costs instead of 101%. This disincentive will be effective 30 days after publication of the final rule.

“If an eligible hospital or critical access hospital has limited information blocking following an investigation by OIG, that healthcare provider will not be a meaningful electronic health record (EHR) user during the calendar year,” said HHS’ Senior Policy Advisor, Alex Baker during a news conference covered by Healthcare Innovation.

MIPS Clinicians

• Under the Promoting Interoperability performance category of the Merit-based Incentive Payment System (MIPS), a MIPS eligible clinician (including a group practice) who has committed information blocking will not be a meaningful EHR user during the calendar year of the performance period in which OIG refers its determination to CMS. If the MIPS eligible clinician is not a meaningful EHR user, then they will receive a zero score in the MIPS Promoting Interoperability performance category. The MIPS Promoting Interoperability performance category score is typically a quarter of an individual MIPS eligible clinician’s or group’s total final score in a performance period/MIPS payment year, unless an exception applies and the MIPS eligible clinician is not required to report measures for the performance category. CMS has modified its policy for this disincentive to clarify that if an individual eligible clinician is found to have committed information blocking and is referred to CMS, the disincentive under the MIPS Promoting Interoperability performance category will only apply to the individual, even if they report as part of a group.

According to the Deputy National Coordinator for Health Information Technology Steven Posnack, under this disincentive policy, an MIPS-eligible clinician participating in information blocking will not be a meaningful EHR user during the calendar year of the determined performance period. CMS also clarified that if an eligible clinician is found to have committed information blocking and referred to CMS, the disincentive under the promoting interoperability performance category would only apply to the individual, even if they report as part of a group.

MSSP ACOs

• Under the MSSP, a healthcare provider that is an ACO, ACO participant, or ACO provider or supplier who has committed information blocking may be ineligible to participate in the program for a period of at least one year. Consequently, the healthcare provider may not receive revenue that they might otherwise have earned through the Shared Savings Program. CMS also finalized in this rule that it will consider the relevant facts and circumstances (e.g. time since the information blocking conduct, the healthcare provider’s diligence in identifying and correcting the problem, whether the provider was previously subject to a disincentive in another program, etc.) before applying a disincentive under the Shared Savings Program.

Alex Baker provided some additional clarity,

CMS specifies that it will consider relevant facts and circumstances before applying a disincentive under the Shared Savings Program. Those could be things such as the nature of the healthcare providers’ information blocking or the time since the information blocking occurred.