HHS finalizes rule establishing information blocking disincentives for physicians

On June 24, 2024, the Department of Health and Human Services (HHS) finalized its rule establishing disincentives for providers who are identified by the HHS Office of the Inspector General as having engaged in information blocking. Information blocking entails practices by health care providers that are unreasonable and “likely to interfere with access, exchange or use of electronic health information (EHI),” except as required by law or covered by a regulatory exception. Physician practices should work to ensure that practices related to exchange of patients’ electronic health information (EHI) is consistent with requirements established under regulation in implementing the 21st Century Cures Act.

The information blocking disincentives established by HHS will vary based on provider type and payment system, as outlined below:

Eligible hospitals and critical access hospitals (CAHs) under the promoting interoperability program: Actors referred to CMS for having engaged in information blocking will be determined to not be a meaningful user of health IT during the calendar year in which the referral is made by OIG. As a result, the hospital will not be able to earn three quarters of the annual market basket increase to payment 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.
MIPS eligible clinicians (including group practices): Physicians reporting under MIPS who are referred to CMS by OIG for having committed information blocking will not be considered a meaningful user of health IT during the performance period in which the referral is made. As a result, they would receive a score of zero in the promoting interoperability (PI) performance category, which typically accounts for a quarter of the total MIPS score, and would thus receive a downward payment adjustment in MIPS. This policy does not impact small practices’ ability to seek an exemption from the PI category and have the category reweighted. CMS has also clarified 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.
Medicare Shared Savings Program: Accountable Care Organizations (ACOs), ACO participants and ACO suppliers and providers who are referred by OIG for information blocking would be ineligible to participate in the program at least one year. As a result, the provider may not receive shared savings revenue that they might otherwise have earned through the program. HHS will consider relevant facts and circumstances before applying such a disincentive under the MSSP.

The AOA is concerned with elements of the rule, including its potentially punitive nature and lack of opportunity for appeals. The AOA will work with the agency to ensure development of appropriate resources to ensure practices are prepared for compliance with information blocking rules. The newly finalized disincentives for providers are effective on July 31, 2024.