On November, 1, 2023, the U.S. Department of Health and Human Services (HHS) published a proposed rule that would establish financial disincentives for health care providers found by the HHS Office of Inspector General to have committed information blocking. While health care providers have been required to comply with the CURES Act and its key component, federal rules aimed at curbing practices that constitute information blocking, this new proposed rule is the first insight into how the prohibition will be enforced against health care providers.
The new proposed rule comes on the heels of HHS’ July 2023 final rule establishing civil monetary penalties (CMPs) for the two other “actors” regulated under the information blocking rules, health IT developers and health information exchanges. Health care providers are not subject to the information blocking CMPs, unless they are also acting as a health IT developer or health information exchange. Enforcement of the information blocking CMPs began on September 1, 2023 and can result in a maximum CMP of $1 million per violation.
The proposed information blocking disincentives applicable to health care providers are subject to finalization of the proposed rule, but for now include the following 3 proposals:
- Medicare Promoting Interoperability Program: An eligible hospital or critical access hospital would not be a meaningful electronic health record (EHR) user in an EHR reporting period. The impact on eligible hospitals would be the loss of 75% of the annual market basket increase. The payment for critical access hospitals would be reduced to 100% of reasonable costs instead of 101%.
- Merit-based Incentive Payment System (MIPS): Under the Promoting Interoperability performance category of MIPS, an eligible clinician or group would not be a meaningful user of certified EHR technology in a performance period during the calendar year of the reporting period. If required to report on the Promoting Interoperability performance category, the eligible clinician would receive a zero score. The Promoting Interoperability performance category score typically can be a quarter of a clinician or group’s total MIPS score in a year.
- Medicare Shared Savings Program (MSSP): A health care provider that is an Accountable Care Organization (ACO), ACO participant, or ACO provider or supplier would be deemed ineligible to participate in the MSSP program for a period of at least one year. This may result in a health care provider being removed from an ACO or prevented from joining an ACO.
The proposals only apply to health care providers that are Medicare-enrolled providers and suppliers, and as such, HHS is seeking further input on additional disincentives that would apply across all categories of health care providers regulated under the information blocking rule.
The proposed rule also identifies the following OIG enforcement priorities when investigating information blocking claims against health care providers: 1) whether the conduct resulted in or had the potential to cause patient harm; 2) whether the conduct significantly impacted a provider’s ability to care for patients; 3) whether the violations were of long duration; and 4) whether the conduct caused financial loss to federal health care programs, or other governing or private entities.
The Office of National Coordinator for Health Information Technology and CMS will host an information session on the proposed rule in the coming weeks. HHS is also seeking public comment on the proposals through January 2, 2024.