On June 24, 2024, the Centers for Medicare and Medicaid Services (CMS) and the Office of the National Coordinator for Health Information Technology (ONC) released a final rule that disincentivizes healthcare providers from knowingly interfering with, preventing or materially discouraging the access, exchange or use of electronic health information (EHI) unless required by law or regulation. This is the first time HHS has implemented disincentives for providers who block EHI. The disincentives are financial penalties that reduce Medicare reimbursement that providers are eligible to earn.

The Final Rule builds upon the 21^st Century Cures Act. The Cures Act established a different sanctions process for providers through the imposition of “distinctives” rather than civil monetary penalties (CMP). The U.S Department of Health and Human Services Office of the Inspector General (OIG) previously finalized rules concerning the imposition of CMPs on non-healthcare provider actors violating the information blocking rule.

The principle disincentives in the rule are:

• Hospitals and critical access hospitals (CAHs) participating in the Medicare Promoting Interoperability Program that have committed information blocking and are referred to CMS by the OIG will not qualify as meaningful electronic health record (EHR) users. If the eligible hospital is not a meaningful EHR user, the hospital will not be able to earn three quarters of the annal market basket increase they would have been able to earn had they been a successful program participant. For CAHs, the disincentive is a reduction in payment from 101 percent of reasonable costs to 100 percent. This disincentive will be effective thirty days after publication of the Final Rule.

• Eligible clinicians and group practices under the Merit-based Incentive Payment System (MIPS) who have committed information blocking will not qualify as meaningful EHR users and will receive a zero score in the MIPS Promoting Interoperability performance category. This category usually accounts for a quarter of an individual MIPS eligible clinician’s or groups total final score in a performance period. If a clinician reports as part of a group, this disincentive will only apply to the individual and not the entire group.

• An Accountable Care Organization (ACO), ACO participant, ACO provider or supplier under the Medicare Shared Savings Program who has committed information blocking may be ineligible to participate for a period of at least one year. In addition, the ACO-affiliated healthcare provider may not receive revenue that might have otherwise been earned through the Shared Savings Program. This disincentive will be effective thirty days after publication of the Final Rule and any disincentive under the Shared Savings Program would not be imposed until after Jan. 1, 2025.

The rule also contains the requirement that the ONC publish on a public website information about those actors that have been determined by the OIG to have committed information blocking. The rule specifies the information to be made public for healthcare providers, health IT developers of certified health IT and health information networks or health information exchanges.

The information will not be posted until the OIG enters into a resolution of CMP liability or a CMP has become final consistent with certain procedures.