The U.S. Department of Health and Human Services (HHS) released a final rule on June 24 that established disincentives for health care providers who practice information blocking.
That could include ambulatory surgery centers (ASCs).
Under the 21st Century Cures Act, the secretary of the HHS has exercised the department’s authority to establish “disincentives” for health care providers who knowingly engage in practices that unreasonably interfere with the access, exchange or use of electronic health information (EHI), except as required by law or covered by a regulatory exception.
“This final rule is designed to ensure we always have access to our own health information, and that our care teams have the benefit of this information to guide their decisions,” HHS Secretary Xavier Becerra stated in a press release. “With this action, HHS is taking a critical step toward a health care system where people and their health providers have access to their electronic health information.”
Broadly, the rule is in line with the Biden administration’s push toward health care information transparency.
“When health information can be appropriately accessed and exchanged, care is more coordinated and efficient, allowing the health care system to serve patients better,” Becerra continued. “But we must always take the necessary actions to protect patient privacy and preferences – and that’s exactly what this rule does.”
The details
Once a provider is reported to the Centers for Medicare and Medicaid Services (CMS), the HHS Office of Inspector General (OIG) will find that a health care provider’s practice constitutes information blocking if it considers that the provider “knows that such a practice is unreasonable and is likely to interfere with, prevent, or materially discourage access, exchange, or use of electronic health information,” and the practice was neither required by law nor meets an exception.
HHS has established the several disincentives for health care providers found by OIG to have committed information blocking.
Under the Medicare Promoting Interoperability Program, a hospital or entity that blocks information will not be considered a meaningful electronic health record user for that year. As a result, that organization may lose out on part of the annual market basket increase it would have received for program participation.
Additionally, under the Promoting Interoperability performance category of the Merit-based Incentive Payment System (MIPS), clinicians who have committed information blocking will receive a zero score. This rule applies to individual clinicians, even if they report as part of a group. The disincentive will be effective 30 days after the final rule is published.
On top of that, the Medicare Shared Savings Program rules state that health care providers found guilty of information blocking may be barred from participating for at least a year. This rule becomes effective 30 days after publication, and any penalties will be imposed after Jan. 1, 2025.
Additional disincentives may be established through future rulemaking, too, according to HHS.
Because the Cures Act requires disincentives to be established using authorities under applicable federal law, the impact of a disincentive will vary based on circumstances specific to each provider and their participation in the program under which a disincentive is imposed, according to HHS.
The HHS final rule complements OIG’s final rule from June 2023, which established penalties for information blocking by health IT developers, health information exchanges and health information networks.
“The information blocking regulations apply to three actors: health care providers, health IT developers of certified health IT and information exchanges (HIEs)/health information networks (HINs),” a spokesperson with HHS’s Office of the National Coordinator for Health IT told ASC News. “OIG’s rule from June 2023 established statutory penalties created by the 21st Century Cures Act for two of the actors: health IT developers of certified health IT and HIEs/HINs.”
When health care organizations are found in violations of these rules, they could face some pretty steep financial consequences.
“If OIG determines an individual or entity has committed information blocking, they may be subject to a $1 million penalty per violation,” the spokesperson continued. “HHS’s rule announced on June 24 established disincentives for the third actor (health care providers) found by OIG to have committed information blocking and referred to CMS. So, the rules complement each other because collectively, they address all information blocking actors with penalties and disincentives to deter information blocking.”
Fulfillment of an EHI request should be based on the request itself. Any practice restricting the scope of the EHI requested may constitute interference and be subject to the information-blocking regulation.
Protecting information
Most clinical information is digitized, accessible and shareable thanks to several technological and policy advances that make interoperable EHR systems widely available.
In 2016, the Cures Act made sharing EHI the norm in health care. It authorized the Secretary of HHS to identify “reasonable and necessary activities that do not constitute information blocking.”
“Information sharing is the expectation of the Cures Act Final Rule, except in certain circumstances, and information blocking is just one of many provisions in the Cures Act to improve the flow and exchange of EHI where and when it is needed and enhance the usability, accessibility, and privacy and security of health IT,” the HHS spokesperson said.
