On Monday, the Health and Human Services Department (HHS) finalized a rule outlining the financial penalties for hospitals, clinicians, and accountable care organizations that interfere with or discourage the access of electronic health information. Although the information blocking regulations of the Cures Act took effect on April 5, 2021, the penalties for non-compliance had not been finalized until this week. HHS deems information blocking when a health care provider “knows [the action] is unreasonable and is likely to interfere with, prevent, or materially discourage access, exchange, or use of electronic health information” and the action was neither required by law nor meets an exception. The penalties are set to take effect 30 days after publication of the rule. For a fact-sheet on the rule, click here. For FAQs, click here.

Under the Medicare Promoting Interoperability Program, an eligible hospital or critical access hospital (CAH) that commits information blocking will not be recognized as a meaningful Electronic Health Record (EHR) user. The impact of that will be a reduction of three quarters of the annual market basket update; for CAHs, payment will be reduced to 100 percent of reasonable costs. Similarly, clinicians that engage in information blocking will receive a zero score in the Merit-based Incentive Payment System (MIPS) – a penalty which would only impact the individual clinician, even if reporting as a clinician group. This would impact the total payments that health providers get as part of Medicare’s quality improvement programs.