New information blocking rules from HHS could cost noncompliant providers thousands

Healthcare providers who engage in information blocking could be on the hook for significant financial penalties, if proposed rules published by the U.S. Department of Health and Human Services this week are put into place.


As required by the 21st Century Cures Act, the HHS Office of Inspector General is empowered to respond to info blocking complaints and determine whether healthcare organizations have “knowingly and unreasonably” interfered with access, exchange or use of electronic health information (notwithstanding some specific exceptions).

HHS has already designated information blocking penalties for the other actors bound by the rules: certified IT developers and health information exchanges/networks. Those types of organizations are subject to a $1 million penalty per violation as determined by OIG.

These new rules describe potential “disincentives” focused on healthcare providers – who could be penalized in several different ways depending on the type of care they deliver.

HHS is requesting public comment on the proposed rule, which will be published in the Federal Register on Wednesday, by January 2, 2024.

Under the rule, the Office of the National Coordinator for Health IT has developed three mechanisms meant to dissuade providers from information blocking – all based around reimbursement programs of the Centers for Medicare and Medicaid Services.

For hospitals, under Medicare’s Promoting Interoperability Program an eligible hospital or critical access hospital found by OIG to be engaged in information blocking could be deemed “not [to] be a meaningful electronic health record user” in an applicable EHR reporting period, according to HHS. “The impact on eligible hospitals would be the loss of 75 percent of the annual market basket increase; for CAHs, payment would be reduced to 100 percent of reasonable costs instead of 101 percent.”

For ambulatory providers, under the Promoting Interoperability performance category of the Merit-based Incentive Payment System an eligible clinician or group found to be blocking would similarly be designated as not achieving meaningful use under the Promoting Interoperability performance category of MIPS – a score that can typically represent a quarter of a clinician or group’s total MIPS score in a year. 

And for healthcare providers that are part of an accountable care organization, an OIG determination of info blocking could make them ineligible to participate in the Medicare Shared Savings Program for a period of at least a year. That could result in a provider being removed from an ACO or prevented from joining an ACO. 

“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,” said HHS Secretary Xavier Becerra in a statement. “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.”

Mike Miliard is executive editor of Healthcare IT News
Email the writer: [email protected]
Healthcare IT News is a HIMSS publication.

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