CMS Proposes Disincentives for Providers for Information Blocking

The Centers for Medicare and Medicaid Services (CMS) published a long-anticipated proposed rule Nov. 1, that would institute disincentives on providers the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) finds are in violation of Information Blocking rules. These rules — in effect without provider-specific penalties for more than two years — prohibit unreasonable practices likely to interfere with, prevent, or materially discourage access, exchange, or use of electronic health information.

Information Blocking compliance requirements for providers and industry actors were implemented in a May 1, 2020, HHS final rule, which went into effect on April 5, 2021. However, the program has significantly evolved since then, with major regulatory changes and publication of assorted HHS guidance, including on compliance issues raised by the American College of Radiology® (ACR®).

Civil monetary penalties were finalized by the OIG on July 3, 2023, for certified health IT developers and health information networks found in violation of information blocking rules, and those penalties went into effect on Sept. 1, 2023. However, the establishing law (21st Century Cures Act of 2016) required Information Blocking penalties to be handled differently for providers, and that these be limited to disincentives allowed under existing HHS authorities — e.g., CMS incentive programs. Accordingly, CMS has proposed that the provider-specific disincentives be as follows:

• Information about violations would be published online.
• Eligible hospitals or critical access hospitals would not be considered meaningful users of an electronic health record (EHR) system for the year.
• Participants in the Merit-based Incentive Payment System Quality Payment Program would not be considered a meaningful user of certified EHR technology during the performance period.
• Accountable care organizations (ACO), ACO participants or ACO providers/suppliers would not be eligible to participate as, or in, an ACO for at least one year. 

More information, including a radiology-specific frequently asked questions document, is on the ACR's information blocking educational webpage.

ACR will file comments to CMS within the 60-day comment period. To provide input into these comments or for more information about Information Blocking rules, contact Michael Peters, ACR Senior Government Affairs Director.