HHS Final Rule Disincentivizes Providers for Healthcare Information Blocking (2024)

Besides paying OIG civil penalties for committing information blocking, healthcare providers are also disincentivized.

If you aren’t familiar with what information blocking is in the healthcare arena, it’s when a healthcare provider intentionally interferes, prevents, or discourages the access, exchange, or use of electronic health information (EHI). This includes medical practices that restrict authorized EHI to patients for their own care or to other providers who are part of their treatment plan, and other permitted purposes.

Recent Information Blocking Rulings and Penalties

June 27, 2023, Office of Inspector General (OIG) published its final ruling under section 4004 of the 21st Century Cures Act (Cures Act) that establishes statutory penalties for information blocking from healthcare providers, developers of certified health IT, and health information exchanges (HIEs)/health information networks (HINs). OIG gave an effective date of Sept. 1, 2023, where they started enforcing information blocking. Individuals or entities who committed information blocking on or after that date, would begin to receive civil monetary penalties of up to $1 million per violation.


This past June 24, the U.S. Department of Health and Human Services (HHS) released a final rule that complimented the OIG’s final ruling that disincentivizes healthcare providers who have committed information blocking. The final rule gives the HHS secretary authority under the Cures Act to disincentivize healthcare providers who are unreasonable, knowingly, and likely interfering with preventing, or materially discouraging EHI access, exchange, or use, “except as required by law or covered by a regulatory exception.”

Information Blocking Process

According to the OIG website, their provider information blocking investigation process and enforcement steps include:

1. OIG receives an information blocking complaint.

2. OIG uses its enforcement priorities to assess complaints.

3. OIG opens an information blocking case.

4. OIG investigates the complaint by gathering facts, conducting interviews, document requests, etc.

  • a. OIG may consult with ONC to assess facts and information blocking regulations.
  • b. The case is closed if OIG concludes information blocking was not committed.

5. OIG provides an opportunity to the entity to discuss OIG’s investigation.

6. If the OIG concludes the entity committed information blocking, a demand letter is sent to the entity.

7. The entity has an opportunity to appeal OIG’s imposition of the penalty.

Disincentives Promote Health Information Transparency

To promote further EHI accessibility that expedites patient care, the Office of Inspector General (OIG) and HHS finalized penalties (disincentives) for providers who are information blocking under the following existing Medicare programs:

  • Eligible hospitals and critical access hospitals found to be information blocking in the Medicare Promoting Interoperability Program will be impacted 75 percent of the annual market basket update that hospitals receive under the Inpatient Prospective Payment System.
  • Eligible clinicians and group practices who are found to be information blocking are not meaningful electronic health record (EHR) users in the Promoting Interoperability performance category of the Merit-based Incentive Payment System (MIPS). They will receive a zero score in the MIPS, which will impact payment adjustments to the Medicare Physician Fee Schedule.
  • Healthcare providers in an Accountable care organization (ACO), ACO participant, or ACO provider or supplier who has been investigated and found to have committed information blocking will be publicly identified on the ONC website along with information about their settlements, civil monetary penalties levies, and administered disincentives. The agencies also finalized the proposals to bar participation for one year from the Medicare Shared Savings Program.

These disincentives will be effective 30 days after the publication of the final rule, except for when prohibiting participation in the Medicare Shared Savings Program, which will be imposed after Jan. 1, 2025. More disincentives may be coming down the pipeline in upcoming rulemakings.

Information Blocking Laws and Exceptions

The Office of the National Coordinator for Health Information Technology (ONC) designated eight exceptions to information blocking provisions found in 45 CFR Part 171.The exceptions include preventing harm, privacy, security, infeasibility, health IT performance, content and manner, fees, and licensing.

Information blocking claims can be reported online through the ONC’s Information Blocking Portal. Go to the ONC website to learn moreabout laws, regulations, and policies related to information blocking.

Resources

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

OIG Information Blocking Fast Facts

HealthIT.gov Information Blocking

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Michelle Dick

Michelle A. Dick, BS, is a development editor for AAPC. She has over 16 years of experience writing and editing for the healthcare arena.

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