HHS Releases Final Rule Establishing Provider Disincentives for Information Blocking

On June 24, the U.S. Department of Health and Human Services (HHS) published a final rule establishing financial disincentives for healthcare providers found to have committed information blocking.

In a corresponding press statement, HHS Secretary Xavier Becerra stated, “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.

“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.”

Information blocking by healthcare providers will be investigated by the HHS Office of Inspector General (OIG). Providers found to be information blocking will be subject to the following disincentives:

• Under the Medicare Promoting Interoperability Program, an eligible hospital (EH) or critical access hospital (CAH) that is found by OIG to have committed information blocking will not be a meaningful electronic health record (EHR) user during the calendar year of the EHR reporting period. This makes the EH not 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 percent of reasonable costs instead of 101 percent. This disincentive will start within 30 days of the final rule’s publication.
• Under the Promoting Interoperability performance category of the Merit-based Incentive Payment System (MIPS), a MIPS eligible clinician (including a group practices) found to be information blocking by OIG will not be a meaningful EHR user during the calendar year of the MIPS performance period. This ensures the EC will receive a score of zero for the MIPS Promoting Interoperability category, which is one quarter of the EC or group’s final MIPS score in a performance year. If an individual EC who is part of a larger group is found to be information blocking, the disincentive would only apply to the individual, not the entire group. This disincentive will be effective 30 days after publication of the final rule.

HIMSS supported this change in public comments provided to HHS in January 2024, suggesting that OIG had the ability to discern if an individual was participating in information blocking within the group but it wasn’t consistent with the rest of the group’s information sharing compliance and if so, the entire group shouldn’t be subject to a penalty.

• Under the Medicare Shared Savings Program, a healthcare provider that is an Accountable Care Organization (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 and may not receipt revenue they would have otherwise earned through the MSSP.
• CMS also finalized that it would consider the relevant facts and circumstances, like the time since the information blocking conduct and the healthcare provider’s diligence correcting the problem, before applying a disincentive under the Shared Savings Program.

The Office of the National Coordinator for Health Information Technology (ONC) and CMS will host a joint information session about the final rule on June 26, 2024, at 2 p.m. ET. More information on the session can be found at healthit.gov/informationblocking.