The U.S. Department of Health and Human Services (HHS) has issued a proposed rule which establishes disincentives for health care providers1 that violate the Information Blocking Rule (IBR) under the 21st Century Cures Act (“Cures Act”). As discussed in our advance warningthe IBR prohibits certain “actors» (i.e. healthcare providers, health information exchanges (HIEs), health information networks (HINs), and health information technology developers certified health professionals (health IT developers) to knowingly and unreasonably interfere with access, exchange, or use of electronic health information unless required by law or covered by regulation exception.2 Earlier this year, the OIG finalized a rule that subjects HIEs, HINs, and health IT developers to a fine of up to $1,000,000 for violating information blocking rules. The HHS proposed rule outlines penalties for provider violations of the IBR:
- Under the Medicare Interoperability Promotion Program, an eligible hospital or critical access hospital (CAH) would not be a significant user of an electronic health record (EHR) during an EHR reporting period applicable. The impact on eligible hospitals would be the loss of 75 percent of the annual increase in the consumption basket; for CAHs, payment would be reduced to 100 percent of reasonable costs instead of 101 percent.
- In the Promoting Merit-Based Incentive Payment System (MIPS) Interoperability performance category, an eligible clinician or group would not be a significant user of certified EHR technology during a performance period and would receive therefore a score of zero in the Promotion of Interoperability performance category. of MIPS, if it is necessary to report on this category. The Promoting Interoperability performance category score can typically represent a quarter of a clinician’s or group’s total MIPS score in a year.
- Under the Medicare Shared Savings Program, a health care provider that is an accountable care organization (ACO), an ACO participant, or an ACO provider or supplier would be considered ineligible to participate in the program for a period of at least one year. This may result in a healthcare provider being removed from an ACO or barred from joining an ACO.
Providers and other stakeholders can learn more about IBR hereOIG sanctions hereand the HHS proposed rule here. Public comment on HHS’s proposed rule is due January 2, 2024. HHS is specifically requesting information from the public on disincentives that may be established in the future for health care providers.
1 “The term “health care provider” includes a hospital, skilled nursing facility, nursing facility, home care entity or other long-term care facility, health care clinic, center community mental health…, a kidney dialysis facility, a blood transfusion center, an outpatient surgery center…, an emergency department. medical service provider, federal health center, group practice, a pharmacist, a pharmacy, a laboratory, a physician (including physicians, general practitioners, dentists, podiatrists, optometrists and chiropractors), a medical practitioner (including physician assistants, nurse practitioners, specialty nursing clinics, certified nurse anesthetists, certified nurse midwives, clinical social workers, clinical psychologists, and licensed dietitians), a tribal organization, a rural health clinic,…a center outpatient surgical,… a therapist and any other category of health establishment, entity, practitioner or clinician deemed appropriate by the Secretary. (42 USC § 300jj; 45 CFR § 171.102).
2 For more information on these exceptions, see Healthcare Providers: Beware New Information Blocking Rule, Holland & Hart, August 26, 2020, available here.
