ONC Clarifies Final Rule Discouraging Information Blocking

June 25, 2024
In a press conference hosted by the ONC, representatives detailed HHS’ information-blocking disincentives with financial consequences for healthcare providers.

In a June 24 press conference by the Office of the National Coordinator for Health Information Technology (ONC), representatives discussed the U.S. Department of Health and Human Services (HHS) final rule establishing disincentives for healthcare providers committing the blocking of electronic health information exchange.

The Cures Act's information-blocking regulations took effect on April 5, 2021, but the disincentives rule had not been finalized until now, wrote Healthcare Innovation’s David Raths in an article on June 24.

Steven Posnack, the Deputy National Coordinator for Health Information Technology, explained that the 21st Century Cures Act identified three different types of actors covered by the law and the subsequent implementing regulations. These are health IT developers, health information exchanges and networks, and healthcare providers.

Posnack added that if the 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. Posnack said that the Secretary (Secretary of Health and Human Services Xavier Becerra) uses additional available authorities already in place to devise appropriate disincentives for healthcare providers.

“This is a law that will require continued implementation,” stated Posnack. One thing to expect over time, Posnack added, is revisions to information-blocking exceptions.

HHS’ Senior Policy Advisor, Alex Baker, reiterated that the HHS Office of Inspector General (OIG) could investigate all actors subject to the information-blocking regulations, specifically healthcare providers.

The first of the final disincentive policies, specified Baker, is under the Center for Medicare and Medicaid Services’ (CMS) Medicare Promoting Interoperability program and applies to eligible hospitals and critical access hospitals currently impacted by that program. “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,” Baker explained. This would mean, Baker continued, that the healthcare system would not be able to participate in the Medicare Interoperability Program for that year, which would result in that hospital not being able to earn the three-quarters of the annual market basket update under the Inpatient Prospective System. “Specific to the structure of the program for critical access hospitals, their payments would be reduced to 100 percent of reasonable costs. Instead of the 101 percent that they are eligible to earn if they successfully participate in the Medicare Promoting Interoperability Program,” Baker elaborated.

“The next disincentive is under the Quality Payment Program,” Baker said, “specifically the promoting interoperability performance category of the Merit-Based Incentive Payment System (MIPS).” Under this disincentive policy, Baker explained, an MIPS-eligible clinician participating in information blocking will not be a meaningful EHR user during the calendar year of the determined performance period. “One modification to this policy in the final rule,” Baker underscored, “is that CMS has 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.”

“The final rule discusses a different set of policies finalized under the Medicare Shared Savings Program (MSSP) under which a healthcare provider is an Accountable Care Organization (ACO),” Baker highlighted. These providers guilty of information blocking would be ineligible to participate in the program for at least one year, Baker added. They would not be able to receive revenue that they might have otherwise earned through the Shared Savings Program.  Baker noted a modification to this policy based on an alternative policy that CMS discusses in the proposed rule. “CMS specifies that it will consider relevant facts and circumstances before applying a disincentive under the Shared Savings Program,” Baker stated. “Those could be things such as the nature of the healthcare providers' information blocking or the time since the information blocking occurred,” he added.

“The final rule states that it will not be investigating healthcare providers until after the effective date of the final rule,” Baker noted.

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