HHS Finalizes Information Blocking Disincentives

Information blocking, as defined earlier through the 21st Century Cures Act (Cures Act) and subsequent regulation, is a practice that is likely to interfere with the access, exchange, or use of electronic health information (EHI), except as required by law or specified in an information blocking exception.  The Cures Act authorizes two separate enforcement mechanisms, depending on the "actor." Health IT developers and health information exchanges/networks (HIEs/HINs) determined to have committed information blocking are subject to civil money penalties (CMPs) of up to $1 million per violation. Health care providers, on the other hand, will be subject to appropriate disincentives, which were finalized in this latest regulation. 

The final regulation ties provider disincentives to three CMS programs:

• Under the hospital-focused Medicare Promoting Interoperability Program, an eligible hospital that has committed information blocking would not earn three quarters of the annual inflationary update (i.e., market basket increase) otherwise provided to successful participants.
• Under the Merit-based Incentive Payment System (MIPS), a MIPS eligible clinician, including a group practice, who has committed information blocking will receive a zero score in the MIPS Promoting Interoperability performance category.  Since the MIPS Promoting Interoperability performance category score is typically a quarter of a participants total final score, this penalty could have a significant impact on Medicare physician payments.  In response to public feedback, CMS modified its policy to clarify that if an individual is found to have committed information blocking, the disincentive would only apply to the individual, even if they report as part of a group.
• Under the Medicare Shared Savings Program (MSSP), a health care provider that is an MSSP Accountable Care Organization (ACO), ACO participant, or ACO provider or supplier who has committed information blocking may be ineligible to participate in the program for a period of at least one year and may not receive revenue that they might otherwise have earned through the Shared Savings Program. However, under this program, CMS will have the discretion to consider the relevant facts and circumstances before applying a disincentive, unlike under the two other programs.

CMS acknowledges that these disincentives would not cover all health care providers that might commit information blocking and expects to propose additional disincentives in the future.  Although the information blocking prohibition has been in effect since 2021, the government will not begin investigating health care providers or making determinations about their conduct until after July 31, 2024. Learn more about information blocking and provider disincentives.