HHS proposes rule to establish disincentives for information blocking

The U.S. Department of Health and Human Services (HHS) has released a proposed rule to establish disincentives for healthcare providers who have committed information blocking. 

What happened

According to a press release, the proposed rule aims to prevent information blocking, which occurs when a provider "knowingly and unreasonably interferes with the access, exchange, or use of electronic health information, except as required by law or covered by a regulatory exception."

The proposed rule complements a final rule established by the HHS' Office of Inspector General, which establishes penalties for actors identified by Congress (including health information technology developers of certified health IT, health information exchanges, and health information networks) who commit information blocking.  

Going deeper

The press release states that three main disincentives will be utilized if a healthcare provider is determined to have committed information blocking. They include: 

• An eligible or critical access hospital would no longer be considered a meaningful electronic health record user. This would mean that impacted hospitals would lose 75% of the annual market basket increase. For critical access hospitals, payment would be reduced to 100% of reasonable costs. 
• An eligible clinician or group would no longer be considered a meaningful user of certified electronic health record technology in a performance period, resulting in a performance score of zero in the Promoting Interoperability category for the Merit-based Incentive Payment System. This would again have a financial impact on healthcare organizations. 
• A healthcare provider that is an Accountable Care Organization, participant, provider, or supplier would be ineligible to participate in the program for at least one year. 

These disincentives are designed to ensure healthcare organizations face financial and organizational consequences for information blocking.  

What was said

HHS Secretary Xavier Becerra said, "HHS is committed to developing and implementing policies that discourage information blocking to help people and the health providers they allow to have access to their electronic health information." 

He added, "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 big picture

The proposed rule showcases HHS' crackdown on information blocking. It follows several other rules designed to penalize organizations that commit information blocking. 

On October 6th, 2022, healthcare providers were mandated to provide electronic patient records under the 21st Century Cures Act. While there are exceptions, the new proposed rule will further ensure that healthcare organizations are fully abiding by current operating standards. 

The proposed rule will be available on the Office of the Federal Register's website beginning November 1st. At that time, it will be available for public comment for 60 days before a final decision is made. 

Related: HIPAA Compliant Email: The Definitive Guide