The Department of Health and Human Services (HHS) is locking in its enforcement strategy to keep healthcare providers from blocking access to electronic health information.
On Monday morning the department released its final rule (PDF) outlining disincentives for eligible hospitals or critical access hospitals, clinician groups and accountable care organizations (ACOs) found to have committed information blocking.
Its broad strokes are largely the same as the proposed rule HHS shared last fall, which outlined financial repercussions tied to Medicare program participation as well as the public disclosure of healthcare providers hit with information-blocking enforcement.
“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,” HHS Secretary Xavier Becerra said in a release. “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,”
Information blocking is defined in 2016’s 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 (PDF).
HHS has already been enforcing information blocking for health IT developers and health information exchanges/health information networks. But whereas those groups are subject to direct civil penalties, HHS’ statutory authority requires the department to shepherd healthcare providers’ practices by targeting their participation in Centers for Medicare & Medicaid Services (CMS) programs.
Specifically, a hospital or critical access hospital found to have committed information blocking could lose its recognition during an applicable reporting period as a meaningful EHR user under the Medicare Promoting Interoperability Program. Hospitals will lose 75% of the annual market basket increase, whereas critical access hospitals will have payments reduced from 101% to 100% of reasonable costs.
Physicians and physician groups HHS finds to have committed information blocking will no longer be a meaningful user of certified EHR technology. This would translate to a hit on their Merit-based Incentive Payment System (MIPS) score in a category HHS said “typically can be a quarter of a clinician or group’s total MIPS score in a year. Here HHS specified that cases where an individual clinician is found to have committed the information blocking, the disincentive in that performance category would only apply to the individual rather than the reporting group.
Finally, ACOs, ACO participants or ACO providers or suppliers would be ineligible to participate in a Medicare Shared Savings Program ACO for at least a year. For the final rule, HHS said it finalized an “alternative policy” outlined in the proposed rule in which CMS will also consider any determinations “in light of the relevant facts and circumstances before applying a disincentive.”
The new provider disincentives will go into effect 30 days after the publication of the final rule in the federal registrar, HHS said, though any disincentives for ACOs won’t be imposed until after Jan. 1.
HHS’ Office of Inspector General’s (OIG’s) case-by-case investigations of providers will not begin until that effective date, HHS said, and it “will exercise its enforcement discretion not to make any determinations regarding conduct occurring prior to the effective date.”
HHS noted that more disincentives could be on the table in future rulemaking though it does not yet have a target date for such additions in mind.
Alongside the financial disincentives, the final rule brings a new transparency component that applies to both providers and the other health IT actors. The Office of the National Coordinator for Health Information Technology (ONC) will post the information of those found to have committed information blocking, as well as how those practices have been addressed, on its website for the general public and potential industry partners.
Previous communications on the draft rule from ONC set ballpark median estimates of the disincentives’ financial impact on some providers. Based on 2021 numbers—which ONC stressed will have changed by the time of enforcement—eligible hospitals would have seen median disincentive of $394,353 under the new enforcement policy. Individual eligible clinicians’ median loss would have been $686 in 2021 under the policy, with a median group of six clinicians facing a $4,116 loss.
“When health information can be appropriately accessed and exchanged, care is more coordinated and efficient, allowing the healthcare system to better serve patients,” Becerra said Monday. “But we must always take the necessary actions to ensure patient privacy and preferences are protected—and that’s exactly what this rule does.”
Per ONC, there have been 1,052 information-blocking complaints submitted to the office between April 5, 2021 and May 31, 2024. About two-thirds were submitted by patients, and roughly four in five pointed to healthcare providers as the potential culprit.
Provider groups have previously pushed back on the compliance requirements handed down by HHS, warning in the run-up to compliance deadlines that “significant knowledge gaps” on the department’s expectations were rife among their memberships.
In a statement released after Monday's final rule release, the Medical Group Management Association (MGMA) said it was "disappointed" that HHS went forward with the "significant administrative and financial penalties" of the proposed rule.
"Medical groups already face myriad difficulties reporting under MIPS, and by enforcing a penalty of zero points in the Promoting Interoperability category, this rule ensures that offending groups will likely receive a negative payment adjustment to every Medicare claim for an entire payment year," Senior Vice President of Government Affairs Anders Gilberg said in the statement. "HHS could have chosen to work with providers to implement corrective action plans, but instead finalized unnecessarily punitive penalties that will financially damage practices and negatively impact Medicare patients. Preventing practices and ACOs from participating in MSSP runs counter to the transition to value-based care and undercuts the ability of providers within the ACO framework to succeed."