HHS Finalizes Provider Disincentives for Information Blocking Violations

The U.S. Department of Health and Human Services (HHS) Office of the National Coordinator for Health Information Technology (ONC) and the Centers for Medicare and Medicaid Services (CMS) released a final rule on disincentives for provider-actors found by the HHS Office of the Inspector General (OIG) to be in violation of information blocking regulations. The regulations prohibit unreasonable practices likely to interfere with, prevent or materially discourage access, exchange or use of electronic health information.

Health information networks/exchanges and developers of certified health IT are already subject to civil monetary penalties for information blocking violations, as established by a June 2023 OIG rule. The latest “provider disincentives” final rule effectively completes HHS’ implementation of the related section of the 21st Century Cures Act of 2016, eight years after becoming law.

Allegations of blocking behaviors will be prioritized by the OIG and investigated on a case-by-case basis. OIG plans to prioritize those allegations of blocking that: resulted in patient harm or impacted a provider’s ability to provide care; occurred over a long period of time; and caused financial loss to federal programs. Investigators must determine whether the accused provider had knowledge a given practice was “unreasonable” as well as a “likely interference.” When a violation is confirmed, the OIG will refer the case to CMS for application of corresponding disincentives. Additionally, the ONC will post data about the violation on a public-facing website. The provider disincentives include:

• Eligible hospitals or critical access hospitals would fail the Medicare Promoting Interoperability Program for the year.
• Eligible clinicians in the Merit-based Incentive Payment System (MIPS) would receive a zero “Promoting Interoperability” performance category score for the performance period in which OIG refers the violation to CMS. This would not affect automatic reweighting for clinicians who do not otherwise participate in that MIPS performance category.
• A health care provider that is an Accountable Care Organization (ACO), ACO participant, or ACO provider or supplier may be ineligible to participate in the Medicare Shared Savings Program for a period of at least one year.

For more background and educational resources, visit the American College of Radiology® (ACR®) Information Blocking webpage. ACR members with questions can also contact Michael Peters, ACR Senior Government Affairs Director.