Information blocking could affect provider payment, MIPS and MSSP participation

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Providers face monetary disincentives for violating information blocking, under a proposed rule released today by the Department of Health and Human Services.

The proposed rule, with 60-day comment period, would establish disincentives for healthcare providers found by the HHS Office of Inspector General (OIG) to have committed information blocking. This is 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. 

WHY THIS MATTERS

Today's proposal complements former OIG actions establishing information blocking penalties for the other actors such as health information technology (IT) developers of certified health IT or other entities offering certified health IT, health information exchanges and health information networks.

It gives teeth to infractions by hospitals, physicians and accountable care organizations.

Providers determined by OIG to have committed information blocking would be referred to the Centers for Medicare and Medicaid Services for disincentives in already established programs, including:

• 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% of the annual market basket increase; for CAHs, payment would be reduced to 100% of reasonable costs, instead of 101%.
• The Quality Payment Program. Merit-based Incentive Payment System (MIPS) clinicians or groups would not be a meaningful user of certified EHR technology in a performance period and would receive a zero score in the Promoting Interoperability performance category of MIPS. The Promoting Interoperability performance category score typically can be a quarter of a clinician's or group's total MIPS score in a year.
• The Medicare Shared Savings Program. Under the Medicare Shared Savings Program, a healthcare provider that is an Accountable Care Organization, ACO participant, ACO provider or supplier would be deemed ineligible to participate in the program for a period of at least one year. This could result in a healthcare provider being removed from an ACO or prevented from joining an ACO.

HHS is seeking information from the public on disincentives that could be established in the future for healthcare providers. Comments must be received no later than 11:59 p.m. ET on January 2, 2024.

On Wednesday, November 15, the ONC and CMS will host an information session.

THE LARGER TREND

Earlier this year, the OIG released a final rule establishing civil money penalties, authorized by the 21st Century 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.

Beginning in April 2021, healthcare providers were mandated to share electronic patient records and other information as defined under regulations set forth as part of the 21st Century Cures Act. At the time, the definition of Electronic Health Information (EHI) for the purposes of information blocking was limited to what existed in the United States Core Data for Interoperability version 1 (USCDI v1). Eighteen months later, on October 6, 2022, the definition of EHI expanded to include all electronically available health information.

Healthcare providers were mandated to share electronic patient records and other information. This included hospitals, electronic health record (EHR) vendors, health information exchanges (HIE) and health information networks (HIN) that became subject to Office of the National Coordinator for Health Information Technology's regulations.

The ONC designated eight exceptions to information blocking, divided into two categories: Exceptions that involve not fulfilling requests to access, exchange or use EHI, and exceptions that involve procedures for fulfilling requests to access, exchange or use EHI.

A key element of the 21st Century Cures Act that was signed into law in 2016 was to improve the flow and exchange of electronic health information by advancing interoperability, prohibiting information blocking and enhancing the accessibility and security of health information technology.

ON THE RECORD

"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." 

Twitter: @SusanJMorse
Email the writer: SMorse@himss.org