HHS Finalizes Rule

Under the 21st Century Cures Act, this rule sets penalties for providers who unreasonably restrict access to electronic health information (EHI). Healthcare providers involved in such practices may face disincentives, including ineligibility for specific Medicare incentives, reduced payment adjustments, and exclusion from the Medicare Shared Savings Program. The rule aims to promote better access and exchange of EHI while safeguarding patient privacy and preferences.

Key Points of the Rule

1. Medicare Promoting Interoperability Program:

Eligible hospitals or critical access hospitals (CAHs) found guilty of information blocking will not qualify as meaningful electronic health record (EHR) users for the year of the EHR reporting period in which the Office of Inspector General (OIG) refers its findings to the Centers for Medicare & Medicaid Services (CMS). This results in significant financial repercussions, such as losing three-quarters of the annual market basket increase for eligible hospitals and reduced payments for CAHs. This measure takes effect 30 days after the final rule’s publication.

2. Merit-based Incentive Payment System (MIPS):

MIPS-eligible clinicians (including group practices) involved in information blocking will receive a zero score in the Promoting Interoperability performance category, which is crucial as it typically constitutes a quarter of their final score. The policy is adjusted to ensure disincentives apply individually rather than to the entire group. This, too, becomes effective 30 days after publication.

3. Medicare Shared Savings Program:

Providers participating as Accountable Care Organizations (ACOs) may face a minimum one-year exclusion from the program, thereby forfeiting potential Shared Savings Program revenues. Before applying this penalty, the CMS will consider factors such as the time since the conduct occurred and the provider’s efforts to address the issue. This provision starts 30 days after the rule’s publication, with actual disincentives imposed from January 1, 2025.

Future Rulemaking:

HHS may introduce additional disincentives through future regulations to further strengthen enforcement against information blocking.