On October 3, the U.S. Department of Health and Human Services (HHS), Centers for Medicare and Medicaid Services (CMS), and Office of the National Coordinator for Health Information Technology (ONC) released a proposed rule titled, “21st Century Cures Act: Establishment of Disincentives for Health Care Providers That Have Committed Information Blocking.” The 78-page proposed rule proposes penalties or “appropriate disincentives” that would apply to certain providers that have been found to have committed information blocking by the HHS Office of Inspector General (OIG).
Specifically, the rule proposes penalties that would apply to providers that participate in three Medicare programs: the Promoting Interoperability Program for hospitals, the Merit-based Incentive Payment System (MIPS), and the Medicare Shared Savings Program (MSSP). MIPS participants found to have committed information blocking would receive a zero-point score for the twenty-five point Promoting Interoperability performance category, which would have a negative impact on their overall MIPS score (the Promoting Interoperability performance category counts for 25 of 100 possible MIPS points).
OIG enforcement for the other types of “actors” under the information blocking rules officially began September 1, 2023. Per the Cures Act law, certified Health IT Developers and Health Information Exchanges and Networks that commit information blocking may be subject to civil monetary penalties of up to a $1 million penalty per violation.
OIG indicates in the rule that they are considering expanding enforcement to include other categories of healthcare providers besides those in the aforementioned programs.
The proposed rule is open for public comment until January 2, 2024. Following the public comment period and release of a final rule, OIG enforcement will begin for providers.