July 19, 2024
The Centers for Medicare & Medicaid Services (CMS) and the Office of the National Coordinator for Health Information Technology (ONC) released a Final Rule in late June implementing disincentives for physicians and other health-care providers participating in specific Medicare programs that the Department of Health and Human Services (HHS) has determined have committed information blocking. The American Medical Association created a summary brief about the new final regulation. It is important to note that physicians and other health-care providers will be subject to CMS and ONC’s disincentive regulations starting July 31, 2024.
HHS has defined "information blocking" as any practice that is likely to interfere with the access, exchange, or use of electronic health information (EHI) unless covered by an exception. Disincentives apply to Medicare-enrolled physicians and other providers found to have committed information blocking but do not extend to all health-care providers. Hospitals and critical access hospitals (CAHs) face disincentives through the Medicare Promoting Interoperability (PI) Program, such as losing their status as meaningful EHR users and receiving reduced payment adjustments. Similarly, physicians participating in the Merit-based Incentive Payment System (MIPS) will receive a zero score for the Promoting Interoperability performance category if found guilty of information blocking. For the Medicare Shared Savings Program (MSSP), health-care providers, including Accountable Care Organizations (ACOs), may be barred from participation for at least one year if found to have committed information blocking. In this final rule, CMS offers MSSP participants more discretion and will consider the nature of the violation, the provider's efforts to correct the issue, and other relevant factors before applying disincentives.
Physicians and other providers must “know” that a practice is unreasonable and is likely to interfere with, prevent, or materially discourage access, exchange, or use of EHI, in order to be in violation of information blocking regulations. The rule also includes a transparency requirement, mandating that information about physicians and other provider actors determined to have committed information blocking be publicly posted on ONC’s website. This includes the physician or other provider’s name, address, the nature of the information blocking practice, and the applied disincentive.