HHS suggests disincentives for info blocking by clinician groups, ACOs and hospitals

The Department of Health and Human Services (HHS) has introduced a plan to ensure healthcare providers comply with regulations against obstructing information. This strategy, outlined in a newly proposed regulation, focuses on implementing “discouragements” for eligible hospitals, critical access hospitals, clinician groups, and accountable care organizations (ACOs) identified by the HHS Office of Inspector General (OIG) as engaging in information blocking.

 Information blocking, defined in the 21st Century Cures Act, includes deliberate actions to impede the access, exchange, or utilization of electronic health information, except when required by law or under specific exceptions.

In contrast to the direct penalties imposed by HHS on health IT entities in September, this approach by the department revolves around the participation of these providers in existing Centers for Medicare & Medicaid Services (CMS) programs. For example, if a hospital or critical access hospital is found to have engaged in information blocking, they will lose their status as meaningful Electronic Health Record (EHR) users in the Medicare Promoting Interoperability Program. 

This will result in a 75% reduction in the annual market basket increase for hospitals, while critical access hospitals will experience reduced payments. The proposed rule estimates a median disincentive of $394,353 for eligible hospitals.

Physician groups found guilty of information blocking will lose their meaningful user status for certified EHR technology within the Promoting Interoperability category of the Medicare Merit-based Incentive Payment System. The rule’s estimate suggests a median loss of $686 for an individual clinician and $4,116 for a median group of six clinicians.

ACOs, ACO participants, or ACO providers/suppliers involved in information blocking will be ineligible to participate in a Medicare Shared Savings Program ACO for at least one year. The rule does not specify the potential monetary impact on this group.

The proposed rule also introduces transparency provisions, requiring HHS to publicly disclose information related to OIG’s determinations, including information-blocking practices, the implicated providers, settlements, and the imposed disincentives.

Enforcement of these discouragements for providers will begin when the proposed rule is finalized. A public comment period is set to begin on November 1 and will run until January 2.

 The Office of the National Coordinator for Health IT (ONC) acknowledges the complexity of information-blocking violations and reveals that OIG will investigate and make determinations on a case-by-case basis. ONC will assist investigators with subject matter expertise and provide the industry with fact sheets, FAQs, and other informative resources to clarify compliance boundaries.

HHS and ONC are also actively working to expand the scope of enforcement to include a wider range of healthcare providers, including renal dialysis facilities, ambulatory surgical centers, pharmacists, and emergency medical services. Unlike the fines imposed on health IT entities, the enforcement measures for providers require utilizing HHS’s existing authority, and no specific timeline has been provided for the release of future enforcement proposals.

Healthcare providers have historically struggled to meet information-blocking requirements, with some expressing concerns about the demanding nature of these requirements and associated deadlines. 

Nevertheless, ONC has observed a consistent increase in the proportion of U.S. adults accessing their electronic health information, especially through digital health applications, due to the introduction of information-blocking requirements and subsequent enforcement efforts.