On November 1, 2023, the U.S. Department of Health and Human Services (HHS) released a proposal for new information blocking disincentives. The proposed rule, titled “21st Century Cures Act: Establishment of Disincentives for Health Care Providers That Have Committed Information Blocking,” follows up on the recent information blocking final rule for health IT developers.
In a press release, HHS Secretary Xavier Becerra stated, “We are confident the disincentives included in the proposed rule, if finalized, will further increase the appropriate sharing of electronic health information and establish a framework for potential additional disincentives in the future.”
The new proposal doesn’t suggest directly fining healthcare providers who engage in information blocking like the previously mentioned rule. Instead, it proposes significant penalties through the Centers for Medicare and Medicaid Services (CMS) and alludes to future disincentive expansion.
In this article, we delve into the core components of this rule, examining its background, the disincentives it prescribes, and the implications for specific Medicare programs.
What are the Proposed Information Blocking Disincentives for Healthcare Providers?
The proposed rule calls for a joint effort between the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) and the Centers for Medicare and Medicaid Services (CMS).
When a healthcare provider is suspected of information blocking, OIG will investigate to determine the situation. If OIG determines that the provider did commit information blocking, they will refer the healthcare provider to the “appropriate agency.”
In this proposal, OIG listed 3 penalties proposed by CMS, but the proposed rule requests new ideas from the public. To ensure all healthcare providers will be subject to penalties, they also request commenters to propose disincentives based on specialty.
Until January 2, 2024, at 11:59 ET, HHS will accept public comments via the Federal Register. Additionally, ONC and CMS will host an information session about the proposed rule on November 15 from 1:30-2:30 PM ET.
It’s important to note that, even if these proposed disincentives wouldn’t have a major impact, there’s likely more to come. Patients, providers, attorneys, and other professionals submit reports of information blocking almost every day too, which makes compliance urgent.
In addition to the following 3 proposed disincentives, the rule includes provisions to identify healthcare providers that commit information blocking.
1: Medicare Promoting Interoperability Program
In 2011, CMS implemented the Promoting Interoperability Program to encourage healthcare providers and hospitals to meaningfully use certified electronic health record technology (CEHRT). CMS also promotes value-based care by providing direct monetary incentives to healthcare providers that display meaningful use of CEHRT.
As stated in the press release, “Under the Medicare Promoting Interoperability Program, an eligible hospital or critical access hospital (CAH) would not be a meaningful electronic health record (EHR) user in an applicable EHR reporting period. The impact on eligible hospitals would be the loss of 75 percent of the annual market basket increase; for CAHs, payment would be reduced to 100 percent of reasonable costs instead of 101 percent.”
The proposed rule expands on this, stating that, “CMS is proposing to revise the definition of ‘Meaningful EHR User’ in 42 CFR 495.4 to state that an eligible hospital or CAH is not a meaningful EHR user in a calendar year if OIG refers a determination that the eligible hospital or CAH committed information blocking, as defined at 45 CFR 171.103, during the calendar year of the EHR reporting period.”
To summarize these quotes, committing information blocking makes healthcare organizations ineligible to be considered meaningful EHR users. As such, any CMS payments that have that prerequisite will be throttled for violations.
2: Merit-based Incentive Payment System (MIPS)
In 2015, the Medicare Access and CHIP Reauthorization Act (MACRA) introduced the Merit-based Incentive Payment System (MIPS). MIPS came into full effect on January 1, 2017 with the goal of moving healthcare to a value-based care system.
As stated in the press release, “Under the Promoting Interoperability performance category of the Merit-based Incentive Payment System (MIPS), an eligible clinician or group would not be a meaningful user of certified EHR technology in a performance period and would therefore receive a zero score in the Promoting Interoperability performance category of MIPS, if required to report on that category. The Promoting Interoperability performance category score typically can be a quarter of a clinician or group’s total MIPS score in a year.”
To summarize, this information blocking disincentive sets the organization’s “promoting interoperability” score to 0 for that year. In most cases, this reduces the MIPS maximum score by 25%.
A lower MIPS score directly translates to lower Quality Payment Program (QPP) payments.
3: Medicare Shared Savings Program (MSSP)
The Medicare Shared Savings Program (MSSP) came into effect in 2012 after the Affordable Care Act (ACA) authorized the program. Its goal is to improve care coordination to achieve better care outcomes at lower costs.
Simply put, the MSSP is a partnership between Medicare and healthcare organizations in reducing care costs. To incentivize these organizations, Medicare shares a portion of the costs saved with Accountable Care Organizations (ACO).
As stated in the press release, “Under the Medicare Shared Savings Program, a health care provider that is an Accountable Care Organization (ACO), ACO participant, or ACO provider or supplier would be deemed ineligible to participate in the program for a period of at least one year. This may result in a health care provider being removed from an ACO or prevented from joining an ACO.”
How Can You Avoid Information Blocking Disincentives?
As we mentioned earlier in this article, these proposed disincentives are just the beginning of information blocking prevention and enforcement. By the time the government begins penalizing healthcare providers, there will likely be several more disincentives for providers to avoid.
But how can you make sure information blocking isn’t an issue for your organization?
At the highest level, you can avoid most Cures Act compliance issues by making protected health information easy to access. HIPAA is king when it comes to healthcare regulations, and following HIPAA best practices also helps reduce Cures Act risks.
Worried about Cures Act compliance? Assess your risk in 5 minutes or less.
The Cures Act requires you to have a solution to release records for each storage system. That means medical, billing, imaging, and paper records must all have electronic methods of release.
Additionally, compliance for EMR systems requires the adoption of the HL7 FHIR application programming interface (API). If you’re unsure if your EMR is Cures-Edition, it’s worth verifying.
As confusing as it may initially sound, healthcare providers don’t always have to release records to avoid information blocking. The Cures Act includes 8 exceptions, which are among the most important things to learn for compliance.
As always, it’s recommended to seek advice from trained legal professionals to help navigate the more complicated aspects of compliance. It’s also wise to ask for help releasing medical records from the release of information pros.