Healthcare providers that engage in so-called information blocking to impede appropriate access to patient information in electronic health records would be subject to significant penalties under a proposed rule published Monday.
Hospitals, physicians and accountable care organizations found to have knowingly and unreasonably blocked other providers, insurers and others from accessing EHR data would suffer various punishments including lower Medicare reimbursements under the draft regulation issued by the Health and Human Services Department, the Centers for Medicare and Medicaid Services and the Office of the National Coordinator for Health Information Technology.
“HHS is committed to developing and implementing policies that discourage information blocking to help people and the health providers they allow to have access to their electronic health information,” HHS Secretary Xavier Becerra said in a news release.
Congress instructed federal agencies to regulate information blocking as part of the 21st Century Cures Act in 2016. In July, the HHS Office of Inspector General published a final rule establishing civil penalties of up to $1 million for information blocking by parties such as technology companies and health information exchanges.
Information blocking has been on the rise since EHR data-sharing requirements took effect in April 2021 and the ONC had logged nearly 900 complaints as of Sept. 30, the agency reported.
The proposed rule lays out three categories of penalties for healthcare providers that don't comply:
- Hospitals that treat Medicare enrollees, including critical access hospitals, would lose their status as "meaningful users" of EHRs, leading to cuts in Medicare reimbursements. For most facilities, that would take the form of a 75% reduction in their market basket increases. Critical access hospitals would see reimbursements reduced from 101% of reasonable costs to 100%;
- Physicians who participate in Medicare likewise would lose meaningful use status, which would diminish their fees under the Merit-based Incentive Payment System, for which about one-quarter of a doctor's score is based on interoperability;
- Medicare Shared Savings Program ACO participants would be excluded from the model for at least one year.
“We are confident the disincentives included in the proposed rule, if finalized, will further increase the appropriate sharing of electronic health information and establish a framework for potential additional disincentives in the future,” Becerra said.