On October 30, 2023, the U.S. Department of Health and Human Services (HHS) announced a new proposed rule detailing the first steps to hold healthcare providers accountable for information blocking under the 21st Century Cures Act. This week’s information session took a closer look at some of the specific aspects of the proposed rule and how the disincentives will work for individual programs. 

Office of the National Coordinator for Health Information Technology (ONC) Senior Policy Advisor Alex Baker kicked off the session with a “30,000-foot view” of the proposed rule that aims to establish a department-wide regulatory framework for managing disincentives and proposes an initial set of appropriate disincentives within Centers for Medicare & Medicaid Services (CMS) programs.

In addition, Baker said, the rule implements HHS authority and complements the Office of Inspector General (OIG)’s guidance on penalties related to information blocking, announced in June. The final rule establishes fines of up to $1 million per info blocking violation.

The Information Blocking Disincentives Proposed Rule is meant to ensure that all parties involved in the healthcare ecosystem work towards enhancing the seamless flow of health information, which is critical for patient care, decision-making, and reducing costs.

It applies to:

• Healthcare Providers: This includes hospitals, clinical laboratories, physicians, and other entities that provide healthcare services and engage in the exchange of health information.
• Health IT Developers: Companies that develop and offer certified health IT are subject to these rules.
• Health Information Exchanges (HIEs) and Health Information Networks (HINs): Organizations that support the exchange of health-related information among organizations according to nationally recognized standards.

The proposed rule is a significant step towards enforcing the information blocking provisions of the Cures Act, with a focus on integrating disincentives into existing CMS programs and enhancing transparency. 

Medicare Promoting Interoperability Program

• If an eligible hospital or critical access hospital (CAH) is referred by the OIG for information blocking, the institution will lose its status as a meaningful EHR user for the implicated reporting period.
• Consequences for eligible hospitals include forfeiting 75% of the annual market basket increase that is contingent upon being recognized as a meaningful EHR user.
• For CAHs, the penalty is a decrease in payment from 101% to 100% of the reasonable costs that would have been awarded for the corresponding year.
• The median disincentive amount could be around $394,353 for eligible hospitals.

Quality Payment Program

• Clinicians determined to be information blocking would receive a zero score in the Promoting Interoperability performance category of the Medicare Merit-based Incentive Payment System (MIPS).
• These clinicians will be required to report a zero in the Promoting Interoperability performance category, which constitutes 25% of the total MIPS score, significantly impacting their cumulative performance score.
• The MIPS performance score is pivotal in determining the payment adjustment factor for the clinician or group, which can be negative (below the threshold), neutral (at the threshold), or positive (above the threshold).
• The median individual disincentive amount could be a loss of $686 for an eligible clinician.
• Groups could see a loss ranging from $1,372 to $165,326 depending on size.

Medicare Shared Savings Program (MSSP)

• Healthcare providers that are part of or serve as MSSP Accountable Care Organizations (ACOs) and are referred by OIG for information blocking will face a minimum one-year suspension from the MSSP.
• Providers participating in an ACO will be expelled, and those serving as an ACO will be completely prohibited from the program.

The rule also includes transparency provisions for all actors covered by the information blocking regulations. ONC’s website would list information about OIG determinations, including practices, actors involved, settlements, penalties, and administered disincentives.

All written or electronic comments must be received via the Federal Register no later than 11:59 p.m. Eastern time on January 2, 2024. You can find the recording to the information session here.