HHS publishes its Proposed Rule “Establishment of Disincentives for Health Care Providers that Have Committed Information Blocking.” Download it here.
- It’s not time to be spooked, just yet, about these potential information blocking disincentives. Enforcement could be limited.
Information Blocking requires providers to “know” that a practice that interferes with the access and use of EHI and is “unreasonable.” Plus, only Eligible Hospitals and Eligible Providers participating in Medicare’s Promoting Interoperabilty and MIPS programs are covered by the proposed enforcement.
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I’ll cut straight to the chase. The potential financial “hit” that health care providers may face if the OIG finds them to have violated the Information Blocking Rule (IBR) could be substantial. The entire provider “disincentives” to Information Blocking structure turns on CMS’ Medicare and Medicaid EHR Incentive Program (aka “Meaningful Use” (although the Medicaid part of the program expired in 2022)). In short, if the OIG finds a health care provider to have violated the IBR, they would be referred to CMS for calculation of reduction of eligible payments under applicable federal Medicare programs. Currently, eligible hospitals are covered by the Medicare Promoting Interoperability Program (PIP), and eligible physicians continue under the Merit-Based Incentive Payment System (MIPS).
Here is a basic breakdown of what such health care providers could be looking at:
- Eligible Hospitals (including critical access hospitals (CAH)). An eligible hospital could lose 75 percent of the annual market basket increase, while a CAH could have payments reduced to 100 percent of reasonable costs instead of the 101 percent of reasonable costs associated with successful participation. For hospitals, this means a potential median disincentive amount loss of $394,353 – although, assuming a 3.2% market basket increase, the range could be anywhere from around $30K to over $2M in payment loss under the Medicare PIP program.
- Eligible Clinicians. Such clinician would receive a zero score in the Promoting Interoperability performance category of the Medicare MIPS. The estimated median individual disincentive amount depends on the size of the clinician group and break down as follows:
- Individual Clinician = median disincentive $686 (with range between $38-$7,184)
- Clinician Group (2-241) = median disincentive $4,116 (with range between $1,372 to $165,326).
- Additionally, an eligible clinician that is an ACO, ACO participant, or ACO provider/supplier would be deemed ineligible to participate as, or in, an ACO for at least one year.
Now, it may be Halloween season, but it’s not time to get spooked 
(just yet) about these potential information blocking disincentives.
First, it’s worth noting that health care providers must have actual knowledge that they are engaged in a practice that is “likely to interfere with access, exchange” of electronic health information (EHI) AND that such practice is “unreasonable.” See 45 CFR 171.103. In its preamble to the Final Rule for Information Blocking, ONC made it very clear that a practice which “blocks” EHI and is applied in a discriminatory manner (e.g., “we will connect to Party A because the refer patients to us, but not to Party B because they are a direct competitor”) would almost certainly be “unreasonable” and violate the IBR. However, the OIG would likely evaluate reported instances on a case-by-case basis and make its determination based on all the facts and circumstances surrounding the particular situation. In short, there should be some leeway here – so long as a health care provider is making a good faith effort to comply with the IBR.
Second, although the the Information Blocking Rule itself was written to apply to a very broad range of types of “health care providers” (see 45 CFR 171.101 & 171.102 extending the rule’s applicability to all health care providers listed in the definition of such term in 42 U.S.C. 300jj, of which there are a LOT, including long term care, behavioral health and rehabilitation “therapists” (e.g., PT, OT etc.)), the practical impact of the proposed disincentives is that enforcement of Information Blocking against providers will be limited only to those who/that are eligible for and participate in PIP or MIPS. So, all the health care provider types that were originally left out of those Medicare programs (e.g., behavioral health, long-term care) appear to be “off the hook” – at least for now — for information blocking as there would be no enforcement lever to make them comply.
My perspicacious law partner, Krystyna Monticello, has a few additional interesting observations about HHS’ approach with the Proposed Rule for disincentives:
“It appears HHS simply doesn’t think it has any other appropriate ‘regulatory disincentive’ structure already in place to lean upon other than Promoting Interoperability/MIPS for this, because the regulatory disincentive must be established using an ‘authority under applicable Federal law’:
‘In the interest of addressing this variability, we considered whether we could propose an alternative approach under which we would tailor the monetary impact of a disincentive imposed on a health care provider to the severity of the conduct in which the health care provider engaged. However, we do not believe it would be feasible to develop such an approach for the disincentives we propose for health care providers. Because disincentives must be established using authorities under applicable Federal law, the statute under which a disincentive is being established would need to specifically authorize or provide sufficient discretion for an appropriate agency to be able to adjust the monetary impact of the disincentive to fit the gravity or severity of the information blocking the health care provider has been determined to have committed. Based on our review of potential authorities under which to establish disincentives, we believe many authorities do not provide discretion to adjust the monetary impact of a potential disincentive in this fashion.’ (see pg 74955 of the Proposed Rule)
There are components of Promoting Interoperability/MIPS that address the exchange of health information and also requires attestation of non-information blocking, so it seems to be a good fit there; but, the resulting penalties could be dramatically different across entities as a result AND could result in an entity with multiple ‘offenses’ over several years reported to OIG but investigated within the same instance of ‘referral’ being subject to no additional disincentives from an entity with only one offense over several years:
‘We simulated a hypothetical scenario of a 3.2 percent market basket increase and a reduction of three quarters of that percentage increase if the proposed information blocking disincentive were applied.[15] Under this scenario, a hospital that lost three quarters of the market basket increase due to the proposed information blocking disincentive would be left with a 0.8 percent market basket increase. Based on this calculation, we estimated a median disincentive amount of $394,353, and a 95 percent range of $30,406 to $2,430,766 across eligible hospitals. The value of the reduction in the market basket increase would be larger in dollar terms for hospitals with greater base IPPS payments….
CMS further notes that if an eligible hospital or CAH received the applicable downward payment adjustment because CMS had already determined the eligible hospital or CAH had otherwise not been a meaningful EHR user during the applicable EHR reporting period due to its performance in the Medicare Promoting Interoperability Program, imposition of the proposed disincentive would result in no additional impact on the eligible hospital or CAH during that payment adjustment year. Finally, CMS clarifies that, even if multiple information blocking violations were identified as part of OIG’s determination (including over multiple years) and referred to CMS, each referral of an information blocking determination by OIG would only affect an eligible hospital’s or CAH’s status as a meaningful EHR user in a single EHR reporting period during the calendar year when the determination of information blocking was referred by OIG. Unless OIG makes an additional referral of an information blocking determination in the subsequent calendar year, an eligible hospital or CAH would again be able to qualify as a meaningful EHR user starting in the subsequent EHR reporting period.’
If you want more information about the Proposed Rule on Disincentives for Health Care Providers that Have Committed Information Blocking, register to attend the ONC + CMS information session on November 15, 2023.
Comment period on the Proposed Rule ends January 2, 2024 at 11:59 pm ET. You can submit your public comments to the federal government here.
