July 22, 2024
The U.S. Department of Health and Human Services (HHS) recently finalized a rule establishing financial disincentives for health care providers found to have committed “information blocking.” Effective July 31, 2024, certain Medicare-enrolled providers may be subject to Merit-based Incentive Payment System (MIPS) penalties if they violate federal information blocking regulations.
What is Information Blocking?
Information blocking is defined as practices that prevent or materially discourage the access, exchange or use of electronic health information. The federal information blocking rule, called for under the 21st Century Cures Act, is intended to enable more widespread access, use, and exchange of patient data, and promote safer, more coordinated care for all patients. With some exceptions, it prohibits any action defined as “information blocking” by physicians, hospitals and health information technology vendors.
Will Disincentives Apply to My Practice?
Physicians have been subject to the information blocking regulations since 2021, but there has been no enforcement mechanism until now. Under the final rule the standard for providers to be found to have committed information blocking is that they “know that such practice is unreasonable and is likely to interfere with, prevent, or materially discourage access, exchange or use of electronic health information.”
MIPS: Clinicians who participate in MIPS and are required to report on the Promoting Interoperability performance category will receive a zero score for the category they are found to have committed information blocking. Because the Promoting Interoperability performance category is currently 25% of the total MIPS score, this would likely result in a penalty based on the current MIPS performance threshold for 2024.
MSSP: Financial disincentives for accountable care organizations (ACOs) will also take effect January 1, 2025. Under the final rule, if a health care provider that is an ACO or part of an ACO is found to have committed information blocking, the Centers for Medicare and Medicaid Services can apply a range of appropriate disincentives under the Medicare Shared Savings Program (MSSP) based on the relevant facts and circumstances.
What Can I Do to Prevent Disincentives?
To prevent disincentives, physicians are encouraged to:
- Reach out to their health IT developers to discuss what they are doing to come into compliance with the final rule
- Review policies, procedures, and practices regarding the access, exchange, or use of EHI to ensure they comply with information blocking regulations and related laws (e.g., HIPAA and state laws)
- Develop policies and procedures outlining when and how you or your organization will apply information blocking exceptions.
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