The Department of Health and Human Services (HHS) is establishing disincentives for health care providers that have committed information blocking, according to a final regulation published on June 24. The CAP has opposed and argued against the penalties that could unfairly decrease pathologists’ Medicare payments.

This rule implements the part of the 21st Century Cures Act stating that a health care provider who knowingly commits information blocking— behavior that is likely to interfere with the access, exchange, or use of electronic health information (EHI)—will be subject to appropriate disincentives.

The CAP also opposed the rule because it may have the unfair consequence of one provider being penalized for another provider’s actions. On January 2, the CAP submitted a comment letter arguing that by implementing this rule, the HHS continues to make physician payment programs more complex.

The rule will use specific Centers for Medicare and Medicaid Services (CMS) payment programs to impose penalties on physicians accused of committing information blocking. If a provider does not participate in those specific CMS payment programs, there are no regulations currently in place to penalize them for committing information blocking. The penalties include:

• The potential for a hospital participating in the Medicare Promoting Interoperability Program to miss out on annual payment increases
• Earn lower quality scores in the Promoting Interoperability category of the MIPS (Merit based Incentive Payment System) program. Pathologists for whom the Promoting Interoperability category of the MIPs is not applicable cannot be held accountable for penalties.
• Be suspended from the Medicare Shared Savings Program, a major value-based payment program in Medicare

The penalties will be effective 30 days after the rule is published in the Federal Register, but disincentives under the Medicare Shared Savings Program won’t be imposed until after Jan. 1, 2025, according to the HHS.

More information can be found at healthit.gov/informationblocking