November 10, 2023
Proposed Rule to Extend Information-Blocking Penalties to Providers
On October 30, 2023, HHS released a proposed rule that would penalize health care providers found in violation of an Information Blocking (IB) Rule previously finalized by the HHS Secretary. Information Blocking is when a provider knowingly interferes with access, exchange, or use of EHI by patients and/or their representatives except as required by law or covered by a regulatory exception. Since the passing of the Cures Act, 2021, health care providers have been subject to information blocking regulations, but there has been no enforcement mechanism under the Act to date; this proposed rule intends to begin enforcing these regulations through certain CMS programs. Comments are due January 2, 2024.
To whom does this rule apply?
The proposed penalties would apply to health care providers participating in the Medicare Promoting Interoperability program, the Medicare Shared Savings Program (MSSP), or that serve a limited number of Medicare beneficiaries. The proposed rule does not include penalties for providers not enrolled in Medicare.
What are the “disincentives?”
If the OIG determines a provider has violated the rule, there are three penalties it may face:
- Loss of 75% annual market basket increase; for Critical Access Hospitals (CAHs), payment would be reduced to 100% of reasonable costs instead of 101%.
- Under the Merit Based Incentive Payment System (MIPS), a violation would result in a zero score in the Promoting Interoperability performance
- Loss of eligibility to participate in MSSP. An ACO, ACO participant, or ACO supplier or provider would not only be barred from the program but may be removed from an ACO or prevented from joining one in the future.
In addition to financial disincentives, the proposed rule would create a framework for public posts on the Office of the National Coordinator for Health Information Technology (ONC) website about providers that have committed information blocking. The website posts would include:
- The health care provider’s name.
- The health care provider’s business address.
- The practice found to have been information blocking and the penalty applied.
- Where to find additional information about the determination of information blocking.
Earlier this year, OIG published a final rule to establish civil money penalties authorized by the 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 the OIG determines that one of these health IT entities has committed information blocking, they may be subject to up to a $1 million penalty per violation.
AHPA extends our gratitude to Tequila “Tee” Nelson, guest author of this article.
Tee is a respiratory supervisor and a student in the Master of Healthcare Administration program at Loma Linda University.