On October 30, 2023, the Department of Health and Human Services (HHS) issued a proposed rule that would establish penalties for providers who do not comply with the information blocking requirements established by the 21st Century Cures Act.
To address increasing concerns that electronic health information (EHI) was not being appropriately shared with patients and among health care providers and payers, Congress included provisions in the 21st Century Cures Act (Cures Act) to prevent information blocking—or practices that are likely to interfere with the access, exchange, or use of EHI. Specifically, the law directed the Secretary of HHS to establish penalties for health care providers that commit information blocking and to establish defined, allowable exceptions that do not constitute information blocking.
While information blocking requirements have been effect for several years, HHS has not yet established penalties for providers who the HHS Office of Inspector General (OIG) has determined have committed information blocking. If finalized, this proposal would implement such penalties. The rule also proposes a process by which information would be shared with the public about health care providers that OIG determines have committed information blocking.
Under the proposal, clinicians who commit information blocking who participate in the Merrit-based Incentive Payment System (MIPS), and are thereby required to report on the Promoting Interoperability performance category, would receive a zero in that category—which makes up 25% of a total MIPS score.
The Centers for Medicare & Medicaid Services (CMS) estimates the following median financial penalties for information blocking in MIPS under the proposal:
- $686 for individual clinicians
- $4,116 for groups of six clinicians
- $165,326 for groups of 241 clinicians
Additionally, HHS is proposing that health care providers that are accountable care organizations (ACO), or part of an ACO, be barred from participating in the Medicare Shared Savings Program for at least one year if they are found to have committed information blocking. This may result in a health care provider being removed from an ACO or prevented from joining an ACO.
Hospitals and critical access hospitals (CAHs) that commit information blocking would not be qualify as meaningful electronic health record (EHR) users under the Medicare Promoting Interoperability Program. As a result, such hospitals would not be able to earn the three quarters of the annual market basket payment increase associated with qualifying as meaningful EHR users. A CAH found to have committed information blocking would have its Medicare reimbursement reduced to 100% of reasonable costs from the 101% of reasonable costs it might have otherwise earned. CMS estimates that this proposal could result in a median penalty of $394,353 for a CAH.
The Association for Clinical Oncology (ASCO) will submit comments to HHS in response to the proposed rule during its open comment period, which is open through January 2, 2024.
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