The U.S. Department of Health and Human Services (HHS) has finalized a rule establishing financial disincentives for healthcare providers found to have committed “information blocking.” Effective July 31, 2024, certain Medicare-enrolled providers may face penalties under the Merit-based Incentive Payment System (MIPS) if they violate federal information-blocking regulations.

What is Information Blocking?

Information blocking refers to practices that prevent or materially discourage electronic health information access, exchange, or use. This federal rule, called for under the 21st Century Cures Act, aims to enable more widespread access, use, and exchange of patient data, promoting safer, more coordinated care for all patients. With some exceptions, it prohibits any action defined as “information blocking” by physicians, hospitals, and health information technology vendors.

Will Disincentives Apply to Your Practice?

Physicians have been subject to information-blocking regulations since 2021, but enforcement mechanisms have been lacking until now. Under the final rule, providers are considered to have committed information blocking if they “know that such practice is unreasonable and is likely to interfere with, prevent, or materially discourage access, exchange, or use of electronic health information.”

MIPS

Clinicians participating in MIPS and required to report on the Promoting Interoperability performance category will receive a zero score for this category if found to have committed information blocking. Since the Promoting Interoperability category currently constitutes 25% of the total MIPS score, this would likely result in a penalty based on the 2024 MIPS performance threshold.

MSSP

Financial disincentives for accountable care organizations (ACOs) will take effect on January 1, 2025. Suppose a healthcare provider that is an ACO or part of an ACO is found to have committed information blocking. In that case, the Centers for Medicare and Medicaid Services can apply appropriate disincentives under the Medicare Shared Savings Program (MSSP) based on the relevant facts and circumstances.

What Can I Do to Prevent Disincentives?

Physicians are encouraged to:

• Reach out to their health IT developers to discuss compliance with the final rule.
• Review policies, procedures, and practices regarding accessing, exchanging, or using electronic health information to ensure compliance with information-blocking regulations and related laws (e.g., HIPAA and state laws).
• Develop policies and procedures outlining when and how to apply information-blocking exceptions.