The U.S. Department of Health and Human Services (HHS) released a final rule that establishes “disincentives” for some health care providers that have committed information blocking. Known as the 21st Century Cures Act (Cures Act), the rule establishes deterrents for health care providers who engage in practices that the providers knew were unreasonable and likely to interfere with, prevent, or materially discourage the access, exchange, or use of electronic health information (EHI), except as required by law or covered by a regulatory exception. AHCA/NCAL submitted comments on the proposed rule earlier this year.
The Office of the National Coordinator for Health Information Technology (ONC) and the Centers for Medicare and Medicaid Services (CMS) will host a joint information session about the final rule on June 26, 2024, at 2 PM ET. More information can be found at healthit.gov/informationblocking, and registration is required.
According to the HHS
press release, the following health care providers are subject to disincentives if they have been found by the HHS Office of Inspector General (OIG) to have committed information blocking:
- An eligible hospital or critical access hospital (CAH) under the Medicare Promoting Interoperability Program.
- An eligible clinician (including a group practice) under the Merit-based Incentive Payment System (MIPS).
- A health care provider that is an Accountable Care Organization (ACO), ACO participant, or ACO provider or supplier under the Medicare Shared Savings Program (MSSP). Note: Nursing facilities often participate as providers in MSSP ACOs.
AHCA/NCAL commented on various challenges faced by providers (such as SNFs that were not eligible for Medicare and Medicaid EHI incentive programs and are not explicitly eligible for MSSP incentive payments if they participate in an ACO). In response, HHS recognized that a “one-size-fits-all approach may not be suitable for all health care providers, especially those facing technological limitations” under this information blocking disincentives.
For this reason, HHS finalized additional flexibilities to incorporate an alternative policy that will allow the Department:
“to consider the unique circumstances of the health care provider when applying this disincentive, and we will consider an OIG information blocking determination in light of the relevant facts and circumstances before applying a disincentive, such as denying the addition of an ACO participant to an ACO participant list (or an ACO provider/supplier to the ACO provider/supplier list), informing an ACO that remedial action should be taken against the ACO participant (or ACO provider/supplier), denying an ACO’s application to participate in the Shared Savings Program if the remedial action is not taken, or terminating an ACO’s participation agreement with CMS.”
Providers participating in MSSP ACO arrangements should discuss with the ACO the implications of this final rule and strategies needed to avoid being subject to the information blocking disincentive penalties.
This HHS final rule complements
OIG’s final rule from June 2023 that established penalties for information blocking actors other than health care providers, as identified in the Cures Act (such as health information technology (IT) developers of certified health IT or other entities offering certified health IT, health information exchanges, and health information networks). Additional disincentives may be established impacting other providers, including nursing facilities, through future rulemaking.