HHS proposes info blocking 'disincentives' for hospitals, clinician groups, ACOs

The Department of Health and Human Services (HHS) has released its plan to keep healthcare providers in line with data blocking requirements.

A proposed rule unveiled Monday outlines “disincentives” for eligible hospitals or critical access hospitals, clinician groups and accountable care organizations that are found by the HHS Office of Inspector General (OIG) to have committed information blocking—defined in the 21st Century Cures Act as the intentional interference with access, exchange or use of electronic health information except when required by law or under certain exceptions.

Unlike the direct penalties HHS began enforcing for health IT entities in September, the department said it plans to target those providers’ participation in existing Centers for Medicare & Medicaid Services (CMS) programs.

For instance, an offending hospital or critical access hospital would no longer be recognized during an applicable reporting period as a meaningful EHR user under the Medicare Promoting Interoperability Program. The former entity would lose 75% of the annual market basket increase while a critical access hospital would have payments reduced from 101% to 100% of reasonable costs associated with successful program participation, according to the proposed rule.

“For eligible hospitals, estimates provided in the proposed rule to illustrate the potential impact of the proposed disincentive show that, while the amount of the disincentive would depend on an eligible hospital’s Medicare payments, this proposal could result in a median disincentive amount of $394,353,” Micky Tripathi, Ph.D., national coordinator for Health IT, and Jonathan Blum, principal deputy administrator and chief operating officer at CMS, wrote in an informational blog post.

Physician groups determined to have committed information blocking would no longer be meaningful users of certified EHR technology under the Promoting Interoperability category of the Medicare Merit-based Incentive Payment System during a performance period.

HHS estimated that the disincentive’s median loss would land at $686 for an individual eligible clinician, and, for the median group of six clinicians, a loss of $4,116. This could range from $1,372 for a group of two clinicians (the 2.5th estimated percentile of clinician group sizes) to $165,326 for a group of 241 clinicians (the 97.5th estimated percentile).

ACOs, ACO participants or ACO providers/suppliers determined to have committed information blocking would be ineligible to participate in a Medicare Shared Savings Program ACO for at least a year, HHS wrote in the proposed rule.

HHS did not give a specific estimated monetary impact for this group of providers, only writing in the proposed rule that restricting participation “would result in these healthcare providers potentially not receiving revenue that they might otherwise have earned if they had participated in the Shared Savings Program.”

Transparency provisions included in the proposal would see HHS post information about OIG’s determinations online. That information would include the information blocking practices, the providers who committed the information blocking, settlements and disincentives, the department said.

“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,” HHS Secretary Xavier Becerra said in a statement.

Enforcement of the provider disincentives will begin once the proposed rule is finalized, HHS said. A public comment period will open Nov. 1, when the proposed rule is published in the Federal Register, and will be open until Jan. 2.

Officials from the Office of the National Coordinator for Health IT (ONC) acknowledged that specific information blocking infractions can be multifaceted or complex, so OIG will be conducting investigations and making determinations on a case-by-case basis, they told press. ONC will support the investigators with subject matter expertise and work to release fact sheets, FAQs and other informational resources that will help the industry better understand where the lines are drawn, they said.

HHS and ONC also have more work to bring the rest of the provider landscape—renal dialysis facilities, ambulatory surgical centers, pharmacists, emergency medical services and others—under enforcement.

Whereas the information blocking enforcement for health IT entities enacted in September were composed of fines by law, ONC officials said those covering providers are required to leverage HHS’ existing authority. They said more time is needed to investigate potential disincentives for these actors that leverage current CMS programs and declined to give a timeline on when a future enforcement proposal could be released.

Providers have historically had a tough time falling in line with information blocking requirements. In late 2022, several provider and provider technology groups pushed back on expanded compliance requirements that went into effect Oct. 6 and the administration’s info blocking compliance deadlines, warning of “significant knowledge gaps” among their memberships.

ONC recently credited the rollout of information blocking requirements and enforcement for a steady increase in the portion of U.S. adults who are accessing their electronic health information, particularly through a digital health app.