Last week, HHS published its final rule outlining disincentives for certain healthcare providers that have committed information blocking (the Final Rule). The Final Rule also provides information related to OIG’s investigation of claims of information blocking and establishes a process by which information will be shared with the public about healthcare providers and other actors (e.g., health IT developers or other entities offering certified health IT, health information exchanges, and health information networks) that OIG determines have committed information blocking.

Information Blocking Disincentives

The 21st Century Cures Act (Cures Act) states that sharing electronic health information (EHI) is expected throughout the health care industry. Information blocking occurs when an “actor” interferes with the access, exchange, or use of EHI. Actors include health care providers, health IT developers of certified health IT, and health information exchanges / health information networks. (For further background, ONC’s information blocking rule is available here.)

OIG previously finalized rules governing the imposition of civil monetary penalties (CMPs) on non-healthcare provider actors violating the information blocking rule (the OIG CMP final rule is available here). The Cures Act provided for a different sanctions process for providers through imposition of so-called “disincentives” rather than CMPs. HHS previously published its proposed disincentives rule on November 1, 2023 (available here).

HHS’s Final Rule now establishes several disincentives for (1) eligible healthcare providers that are also Medicare-enrolled providers or suppliers and (2) critical access hospitals (CAHs) found by OIG to have committed information blocking and referred by OIG to CMS. Eligible “healthcare providers” are defined at 42 U.S.C. § 300jj (available here) and includes, but are not limited to, hospitals, skilled nursing facilities, nursing facilities, home health entities or other long term care facilities, and more.

Key disincentives are listed below. Additional disincentives may be established through future rulemaking.

• Medicare Promoting Interoperability Program: An eligible hospital or CAH that has committed information blocking and is referred to CMS by OIG will not be a meaningful electronic health record (EHR) user during the calendar year of the EHR reporting period in which OIG refers its determination to CMS. If the eligible hospital is not a meaningful EHR user, the eligible hospital will not be able to earn three quarters of the annual market basket increase they would have been able to earn for successful program participation; for CAHs, payment will be reduced to 100 percent of reasonable costs instead of 101 percent. This disincentive will be effective thirty days after publication of the Final Rule.
• Merit-based Incentive Payment System (MIPS) Promoting Interoperability performance category: An eligible clinician (including a group practice) who has committed information blocking will not be a meaningful EHR user during the calendar year of the performance period in which OIG refers its determination to CMS. If the MIPS eligible clinician is not a meaningful EHR user, then they will receive a zero score in the MIPS Promoting Interoperability performance category. The MIPS Promoting Interoperability performance category score is typically a quarter of an individual MIPS eligible clinician’s or group’s total final score in a performance period/MIPS payment year, unless an exception applies and the MIPS eligible clinician is not required to report measures for the performance category. CMS has modified its proposed rule for this disincentive to clarify that if an individual eligible clinician is found to have committed information blocking and is referred to CMS, the disincentive under the MIPS Promoting Interoperability performance category will only apply to the individual, even if they report as part of a group. This disincentive will be effective 30 days after publication of the Final Rule.
• Medicare Shared Savings Program: A health care provider that is an Accountable Care Organization (ACO), ACO participant, or ACO provider or supplier who has committed information blocking may be ineligible to participate in the program for a period of at least one year. Consequently, the ACO-affiliated health care provider may not receive revenue that it might otherwise have earned through the Shared Savings Program. This disincentive will be effective thirty days after publication of the Final Rule; however, any disincentive under the Shared Savings Program would not be imposed until after January 1, 2025.

Investigation Priorities and Public Posting

OIG has discretion to choose which information blocking complaints to investigate. As the Final Rule explains, to maximize efficient use of resources, OIG generally focuses on selecting cases for investigation that are consistent with its enforcement priorities and intends to apply that rationale to its approach for selecting information blocking complaints for investigation.

For investigations of health care providers, these priorities include alleged information blocking activities that: (1) resulted in, are causing, or have the potential to cause patient harm; (ii) significantly impacted a provider’s ability to care for patients; (iii) were of long duration; and (iv) caused financial loss to Federal healthcare programs, or other government or private entities. These priorities are informational only and are not binding on OIG decision making.

The Office of the National Coordinator for Health Information Technology’s (ONC) will publish on a public website information about actors that have been determined by OIG to have committed information blocking. This information includes:

For Healthcare Providers:

• Healthcare provider name;
• Business address;
• The practice found to have been information blocking and when it occurred;
• The disincentive(s) applied; and
• Where to find any additional information about the determination of information blocking that is publicly available via HHS or another part of the U.S. Government.

This information will not be posted before a disincentive is imposed and not before the completion of any administrative appeals process pursued by the healthcare provider.

For Health IT developers of certified health IT and health information networks or health information exchanges:

• Type of actor;
• Actor’s legal name, including any alternative or additional trade name(s);
• The practice found to have been information blocking and when it occurred; and
• Where to find any additional information about the determination of information blocking that is publicly available via HHS or another part of the U.S. Government.

This information will not be posted until either (1) OIG enters into a resolution of civil monetary penalty (CMP) liability or (2) a CMP has become final consistent with certain procedures established at 42 C.F.R. § 1003, subpart O.

The Final Rule is available here.