On Oct. 30, HHS published a proposed rule that includes financial penalties for provider organizations found by HHS’s Office of the Inspector General (OIG) to have violated the information-blocking provisions in the 21st-Century CURES Act. The Deputy National Coordinator for Health IT explained to the press that individual clinicians and patient care organizations could lose the ability to participate in the Medicare Shared Savings Program.
On Oct. 30, the Department of Health and Human Services (HHS) published a proposed rule that includes financial penalties for provider organizations found by HHS’s Office of the Inspector General (OIG) to have violated the information-blocking provisions originally introduced in the 21st-Century CURES Act.
The announcement, posted to HHS’s website on Monday morning, Oct. 30, began thus: “The U.S. Department of Health and Human Services (HHS) today 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, which reflects contributions from throughout the department, implements the HHS Secretary’s authority under section 4004 of the 21st Century Cures Act (Cures Act).
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).
In this 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.”
And the press release quoted Health and Human Services Secretary Xavier Becerra as stating that “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. 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,” the Secretary added. To ensure appropriate sharing and the protection of patient privacy and preferences, the information blocking regulations include exceptions, such as the Privacy Exception, he noted.
Furthermore, the announcement noted, “Earlier this year, OIG published a final rule to establish civil money penalties authorized by the Cures Act that applies to health IT developers of certified health IT, entities offering certified health IT, health information exchanges, and health information networks. If OIG determines that one of these entities has committed information blocking, they may be subject to up to a $1 million penalty per violation.”
A few hours after the above announcement was posted to the HHS website, Steven Posnack, Deputy National Coordinator for Health IT, in the Office of the National Coordinator for Health IT (ONC; a division inside HHS), commented on the proposed rule, in a web-based press briefing.
As Posnack noted, “The CURES Act made sharing electronic health information the expected norm, by establishing a definition of information-blocking.” And, “When you think about information-blocking, that is considered a practice that is an act or omission by an actor that will likely interfere with the access or use of electronic health information.” He referenced three categories of entities: certified health IT developers, health information exchanges and networks; and providers. All three types of entities fall under the information-blocking rules and provisions of the CURES Act.
Significantly, Posnack noted that one set of incentives is planned to apply to the leaders of the accountable care organizations (ACOs) participating in the Medicare Shared Savings Program (MSSP). “Such incentives,” he said, “could apply to hospitals or critical-access hospitals. There could be financial consequences. Similarly, for eligible clinicians, the same type of consequence would occur: the clinician would not be considered a meaningful user, and that could affect their MIPS score. For MSSP, a determination by the HHS OIG of information-blocking would result in a provider being deemed ineligible to participate in an ACO for at least one year.”
The proposed rule will officially be published on November 1, and the public comment period will end on January 2.
