New Penalties Loom for Blocking Access to Patient Health Data

On July 1, 2024, the U.S. Department of Health and Human Services (HHS) released a final rule outlining financial penalties, referred to as “disincentives” throughout the rule, for healthcare providers that engage in conduct that is considered “information blocking.” The 21^st Century Cures Act defines information blocking as a “practice that interferes with, prevents, or materially discourages access, exchange, or use of electronic health information.”

The disincentives to discourage information blocking include the following:

• A hospital or critical access hospital (CAH) that has committed information blocking will not be considered a Meaningful electronic health record (EHR) user under the Medicare Promoting Interoperability Program. The consequence is that a hospital will not be able to earn the market basket increase it would have otherwise been eligible to earn, and a CAH will have its payment reduced from 101 percent of reasonable costs to 100 percent. This disincentive is effective July 31, 2024.
• Merit-based Incentive Payment System (MIPS) eligible clinicians and group practices that engage in information blocking will not be considered Meaningful EHR users and will receive a zero score in the “Promoting Interoperability” MIPS category, which is typically a quarter of the total final composite performance score. This disincentive is effective July 31, 2024.
• A heath care provider that is an Accountable Care Organization (ACO), an ACO participant or ACO provider/supplier that has committed information blocking may be barred from participating in the Medicare Shared Savings Program for at least one year and would not be able to receive revenue it would have otherwise received. This disincentive is effective July 31, 2024; however, any disincentive under the Shared Savings Program would be imposed after January 1, 2025.

The HHS Office of Inspector General (OIG) determines if information blocking has occurred by following regulations from the Office of the National Coordinator for Health Information Technology. They investigate and gather evidence on the conduct and intent of the provider. OIG anticipates that its investigations will focus on information blocking conduct that: 1) results, or could result, in patient harm; 2) significantly impacted a provider’s ability to care for the patient; 3) persisted for a long duration; or 4) caused financial loss to federal programs.