The U.S. Department of Health and Human Services (HHS) finalized its rule aiming to hold health care professionals, including physicians, accountable for information blocking as determined by the HHS Office of Inspector General (OIG). The rule took effect July 31, after which OIG said it would begin investigating claims of information blocking.
Per HHS, the final rule exercises the 21st Century Cures Act to establish disincentives for medical professionals who engage in practices they knew were “unreasonable and were likely to interfere with, prevent, or materially discourage the access, exchange, or use of electronic health information, except as required by law or covered by a regulatory exception.”
The final rule also accompanies OIG’s final rule from June 2023 that established penalties for information blocking actors other than physicians.
In December, the Texas Medical Association urged HHS to not codify many aspects of the final rule, including proposed penalties on Merit-based Incentive Payment System (MIPS) eligible clinicians and physician practices in an Accountable Care Organization (ACO). TMA also asked the agency to not permit retroactive investigations of information blocking that predate this regulation’s finalization.
“We [TMA] are concerned that any additional Medicare penalties will further drive physicians away from Medicare exacerbating patient access to care. Medicare already does not keep up with inflationary rates on physician payment, and this proposal intensifies the issue,” TMA wrote.
Despite TMA’s recommendations, HHS established the following disincentives for medical professionals found to have committed information blocking:
- A MIPS eligible clinician (including a group practice) will lose their status as a meaningful EHR user, resulting in a zero score in the MIPS Promoting Interoperability performance category.
- A physician practice that is an ACO, an ACO participant, or an ACO supplier may become ineligible to participate in the program for a period of at least one year. Consequently, they may not receive revenue they might otherwise have earned through the shared savings program.
- Actors, such as physicians, who are determined to be information blockers will have their information posted to ONC’s website.
- A hospital or critical access hospital also will lose their status as an EHR user, meaning they will likely not be able to earn three quarters of the annual market basket increase they would have for successful program participation.
Additional disincentives also may be established through future rulemaking, HHS says.
TMA experts continue to analyze the final rule for additional physician impact. For more information about the 21st Century Cures Act, interoperability, and information blocking, visit the TMA’s Cures Act webpage.
Last Updated On
August 01, 2024
Originally Published On
June 25, 2024
Alisa Pierce
Reporter, Division of Communications and Marketing
(512) 370-1469