What’s the news: Physicians and other health professionals participating in certain Medicare programs can for the first time be held accountable if they are found to have committed “information blocking.” That is defined as a practice that is likely to interfere with the access to, exchange of, or use of electronic health information that isn’t covered by an exception.
The Centers for Medicare & Medicaid Services (CMS) and Office of the National Coordinator for Health Information Technology (ONC) issued a final rule that allowed the Department of Health and Human Services’ (HHS) Office of the Inspector General (OIG) to investigate allegations of information blocking for conduct starting July 31.
The OIG said it will prioritize investigating practices in which the alleged information blocking has resulted in or could cause patient harm, affect a physician or other health professional’s ability to care for patients, went on for a long time, and cost federal health care programs or other government or private entities money. To be judged as violating the rule, physicians and nonphysician providers must “know” that a practice is unreasonable and is likely to interfere with, prevent or materially discourage accessing, exchanging or using electronic health information.
Why it matter: EHR developers, health information networks and health information exchanges have since September 2023 faced financial penalties of up to $1 million for every violation. But physicians, hospital accountable care organizations and other health professionals had been excluded by the information-blocking rules, which stem from the 21st Century Cures Act.
The June final rule establishes penalties for physicians, for which the AMA’s experts have provided an executive summary (PDF). For example, a physician eligible for Medicare Merit-based Incentive Payment System (MIPS) found to have committed information-blocking during the calendar year of a given performance period will get a zero score in the promoting interoperability MIPS category.
The applicable MIPS payment year is two calendar years after the performance period. For example, if OIG referred an information-blocking determination in 2025, the penalty would apply to the 2027 MIPS payment year.
On its website, the ONC will publicly post the name, address, nature of the information-blocking practice and the disincentive applied for physicians and other professionals and entities that the OIG has found committed information blocking.
During the comment period, the AMA told the Biden Administration there needs to be a corrective-action plan as well as a more meaningful appeals process. The AMA will continue to advocate for these items.
To plan for and prevent information-blocking penalties, physicians and others should:
- Review policies and procedures for accessing, exchanging or using electronic health information comply with ONC’s information blocking regulations and related federal and state laws.
- Review, update or create documents that describe the commitment to sharing electronic health information.
- Train personnel so they understand what it takes to be compliant.
- Improve processes to create and retain records and other documents so that they comply with the regulations.
- Identify and retain legal counsel to help prepare for an OIG investigation.
Learn more: Further information-blocking resources (PDF) are in included in the AMA Patient Access Playbook.
Physicians can find a two-part explanation of the basics of information blocking (PDF) to help them understand what information blocking is, when information can be withheld and how they can comply with information-blocking regulations (PDF).
