Information blocking is any practice that could interfere with the access, exchange, or use of electronic health information (“EHI”) if done by a covered actor, which includes healthcare providers. This blog has discussed how 2016’s 21st Century Cures Act implemented a prohibition against information blocking, and HHS’s plans for its implementation. However, to-date healthcare providers have not been subject to direct civil monetary penalties or fines. That changes with a new final rule entitled “Establishment of Disincentives for Health Care Providers That Have Committed Information Blocking.” This blog post addresses what the change means for ambulatory providers and hospitals.
For ambulatory providers, this accomplished through a change to the definition of “Meaningful EHR user for MIPS,” The rule states that a “MIPS eligible clinician (other than a qualified audiologist) is not a meaningful EHR user for a performance period if the HHS Inspector General refers a determination that the MIPS eligible clinician committed information blocking.” Hospitals are addressed with a similar qualifier, with the rule stating that “[a]n eligible professional, eligible hospital or CAH is not a meaningful EHR user in a payment adjustment year if the HHS Inspector General refers a determination that the eligible hospital or CAH committed information blocking.”
As a result for hospitals, according to the Department of Health and Human Services FAQ regarding the new rule, “[i]f the eligible hospital is not a meaningful EHR user, the eligible hospital will not be able to earn three quarters of the annual market basket increase they would have been able to earn for successful program participation; for CAHs, payment will be reduced to 100 percent of reasonable costs instead of 101 percent.”
On the ambulatory side, CMS penalizes or rewards providers between -9% and +9% on their Medicare Part B claims through the Merit-based Incentive Payment System (“MIPS”). MIPS is scored between 0-100, with 25% coming from the category associated with using electronic health record technology (“Promoting Interoperability”). This rule gives the prohibition against information blocking teeth against providers setting their Promoting Interoperability score to 0 if they are found to have engaged in information blocking. MIPS is budget neutral; therefore, every incentive dollar one provider earns is funded by a penalty taken from another. The new disincentive more or less imposes a 25% handicap in MIPS on providers who are found to have engaged in information blocking and will likely push many into a penalty.
Note, when reporting scores to CMS, providers also make an attestation that they have not engaged in information blocking. This means to the penalty discussed above, more egregious cases may fall under the False Claims Act. With these new penalties and the prior attestations, the business case for understanding what constitutes information blocking is stronger than ever for physicians and hospitals.
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