Proposed Federal Rule on Disincentives for Health Care Providers Blocking Information

The U.S. Department of Health and Human Services Centers for Medicare & Medicaid Services and Office of the National Coordinator for Health Information Technology have proposed a rule that “would implement the provision of the 21st Century Cures Act specifying that a health care provider determined by the HHS Inspector General (OIG) to have committed information blocking shall be referred to the appropriate agency to be subject to appropriate disincentives ….”  The proposed rule complements OIG’s existing rule on civil money penalties for information blocking (see 42 C.F.R. Part 1003 Subpart N and 42 C.F.R. Part 1005).  One proposed disincentive is that under the Medicare Promoting Interoperability Program, an eligible hospital would not be a meaningful electronic health record (EHR) user in an applicable EHR reporting period, resulting in a 75% loss of the annual market basket increase.  Another proposed disincentive is that under the Medicare Shared Savings Program, a health care provider that is an Accountable Care Organization (ACO), ACO participant, or ACO provider or supplier would be ineligible to participate in the Program for at least one year, resulting in a huge loss of income for that ACO’s participants.  Written and electronic comments on the proposed rule will be received until 5pm January 2, 2024.  For additional information, see 88 Fed. Reg. 74947 (Nov 1, 2023).