In late June, CMS, along with the Office of the National Coordinator for Health Information Technology (ONC), finalized regulations that establish disincentives for certain health care providers that have committed information blocking. 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 lates regulation.
The final regulation ties provider disincentives to three CMS programs:
- The Medicare Promoting Interoperability Program, which impacts Medicare payments to hospitals;
- The Merit-Based Incentive Payment System (MIPS), which impacts Medicare payments to clinicians; and
- The Medicare Shared Savings Program, which impacts Medicare payments earned through Accountable Care Organizations (ACOs).
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.
More information about information blocking and provider disincentives can be found here.
