Advocacy Alert: HHS Finalizes Rule Establishing Disincentives for Health Care Providers That Have Committed Information Blocking

Please see the following AHIMA Advocacy Alert:

The HHS Office of the National Coordinator for Health Information Technology (ONC) released the text of the Information Blocking Provider Disincentives Final Rule prior to posting on the Federal Register. The final rule completes implementation of the information blocking program by imposing penalties for providers found guilty of violating the information blocking rules outlined in the 21st Century Cures Act. Similar to the final rule the HHS Office of the Inspector General (OIG) released in 2023 imposing penalties on Health Information Exchanges (HIEs)/Health Information Networks (HINS) and technology developers, this final rule outlines the process in which OIG will investigate providers for information blocking and how, and to whom, providers will be referred to within HHS for appropriate disincentive imposition. ONC will host an information session open to the public on June 26, 2024, at 2:00 pm ET, those interested are encouraged to register.

It is unknown at this time when the final rule will be posted in the Federal Register. Once posted, the clock will begin on when provisions within this final rule take effect.

Key provisions in the rule include:

  • Under the Medicare Promoting Interoperability (PI) Program, an eligible hospital or critical access hospital (CAH) that has been found guilty of committing information blocking and is referred to CMS will not be considered a meaningful EHR user during the calendar year of the EHR reporting period in which OIG refers its determination to CMS.
    • A non-meaningful EHR user will not be able to earn three-quarters of the annual market basket increase and CAHs will have payments reduced to 100% of reasonable costs instead of 101%.
    • This disincentive will be effective 30 days after publication of the final rule.
  • Under the MIPS PI performance category, an MIPS-eligible clinician who has committed information blocking will not be a meaningful EHR user during the calendar year of the performance period in which OIG refers its determination to CMS.
    • Non-meaningful users receive a zero score in the MIPS PI program performance category.
    • CMS clarified that if a single member of a group is found guilty of information blocking, only that individual clinician will be penalized.
    • This disincentive will be effective 30 days after publication of the final rule.
  • Under the Medicare Shared Savings Program, a health care provider that is an ACO, ACO participant, or ACO provider or supplier found guilty of information blocking may be ineligible to participate in the program for a period of a least one year.
    • Exclusion from the program would include being ineligible to receive revenue that they might have otherwise earned under the program.
    • This disincentive will be effective 30 days after publication, however, any disincentive under the program would be imposed after January 1, 2025.
  • The final rule also indicates there will be no additional, or single, appeals process created other than any appeals process already in place within the programs the disincentive is imposed.
  • The final rule also finalizes that those deemed to have violated information blocking will have information and a summary of the judgement/violation practice posted publicly.
  • Finally, CMS finalized that each referral of an information blocking determination by OIG would only impact meaningful user status in a single performance program.

Providers should already be in compliance with information blocking policies today as the applicability date for information blocking has already passed. Those that are still working through compliance activities can use the following AHIMA resources to assist in their preparations:

If you have any questions, please do not hesitate to reach out to AHIMA’s Policy and Government Affairs team at advocacy@ahima.org.