HHS Adds New Teeth to Information Blocking Law for Health Care Providers

July 3, 2024October 17, 2024 Kathie McDonald-McClure Cures Act and Program Interoperability, Electronic Health Records, Health Information Technology, HITECH Law, Meaningful Use Accountable Care Organizations, ACOs, civil penalties, Critical Access Hospitals, eligible hospitals, health information blocking, Health Information Technology, meaningful use of certified EHR, Medicare, Merit-based Incentive Payment System, MIPS, MSSP, ONC, Promoting Interoperability Program, Shared Savings Program

by Margaret Young Levi, Kathie McDonald-McClure, and Drayden Burton (Wyatt Summer Associate)

On July 1, 2024, the U.S. Department of Health and Human Services (HHS) published a final rule entitled “21st Century Cures Act: Establishment of Disincentives for Health Care Providers That Have Committed Information Blocking,” 89 Fed. Reg. 54662 (Final Rule) establishing “disincentives” for health care providers who commit information blocking. Importantly, the 21^st Century Cares Act explicitly delegated the authority to HHS to establish “appropriate disincentives” for information blocking through notice and comment rulemaking. 42 U.S. Code § 300jj–52(b)(2)(B). Previously, on October 23, 2023, HHS published its proposed rule seeking comments on the proposed appropriate disincentives (Proposed Rule).

In general, “information blocking” means knowingly and unreasonably interfering with, preventing, or materially discouraging the access, exchange, or use of “electronic health information” (EHI) unless such blocking is required by law or permitted by regulatory exceptions. To learn more about information blocking and the permitted exceptions, see our article “Information Blocking Rule Effective April 5, 2021: Are Providers Ready?,” which provides an overview of the Rule’s key elements and requirements. The prohibition on information blocking went into effect on April 5, 2021, but until now did not contain any penalties for health care providers who engage in information blocking. Previously, on June 27, 2023, the HHS Office of Inspector General (HHS-OIG) established civil monetary penalties of up to $1 million per information blocking violation by developers of certified health information technology and for health information networks (HINs) and health information exchanges (HIEs). (88 Federal Register 42820).

This Final Rule adds some teeth, aiming to ensure that individuals and their health care providers always have access to the individual’s health information. Some of the comments that HHS had received to its Proposed Rule supported disincentives that incentivize an exchange of EHI across care settings on the basis that this will lead to better patient outcomes. In issuing its Final Rule HHS stated, “When health information can be appropriately accessed and exchanged, care is more coordinated and efficient, allowing the health care system to better serve patients.”

The “Disincentives”

The Final Rule establishes certain “disincentives” for several categories of health care providers that HHS-OIG finds to have engaged in activities that interfere with or prevent access to EHI that constitute information blocking. These disincentives are as follows:

KHIE issues June Newsletter

June 17, 2014 Kathie McDonald-McClure EHR Certification Standards, Electronic Health Records, Eligible Professional Incentives, Health Information Technology, HITECH Law, Hospital EHR Incentives linkedin, meaningful use of certified EHR, Medicare reimbursement reductions

The Kentucky Health Information Exchange (KHIE) has issued its June 2014 Newsletter, The KHIE Connection. This month’s issue includes a summary of the Centers for Medicare and Medicaid Services (CMS) Notice of Proposed Rule Making (NPRM) that, if finalized, would allow providers to meet Stage 1 or Stage 2 Meaningful Use with electronic health records (EHRs) that are certified to HHS ONC’s 2011 or 2014 Edition criteria or a combination of both Editions. Comments to the NPRM must be received by July 21, 2014. The newsletter also addresses Medicare’s scheduled payment adjustments for 2015 that will impact eligible hospitals and providers who do not timelyattest to Meaningful Use of certified EHRs. Guidance on attesting to Meaningful Use also is included.

March 31st Attestation Deadline for Eligible Professionals

March 18, 2014 Margaret Young Levi Electronic Health Records, Health Information Technology, Meaningful Use EHR, Electronic Health Records, Health care reform, Health Information Technology, Meaningful Use, meaningful use of certified EHR

Reminder: The deadline for Medicare eligible professionals to attest to meaningful use of certified electronic health record technology for the 2013 program year is just two weeks away. Attestations are due on March 31, 2014 at 11:59 pm EST. Click here for addition information about the EHR incentive program as well as to register or attest to meaningful use.

CMS Extends Stage 2 Meaningful Use through 2016

December 6, 2013March 12, 2014 Kathie McDonald-McClure EHR Certification Standards, Electronic Health Records, Eligible Professional Incentives, Health Information Technology, HITECH Law, Hospital EHR Incentives, Meaningful Use EHR Certification Standards, EHR Stage 2 MU, Electronic Health Records, eligible professional EHR incentives, HITECH Act, hospital EHR incentives, meaningful use of certified EHR

On Friday, November 6, 2013, the Centers for Medicare & Medicaid Services (CMS) and the Office of National Coordinator of Health Information Technology (ONC) announced its proposal to extend the timeline by which eligible healthcare providers must demonstrate a “meaningful use” (MU) of a certified electronic health record (EHR) in compliance with the MU Stage 2 criteria set forth in regulations issued pursuant to the Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009. Originally, eligible providers who demonstrated Stage 1 MU by the end of 2013 would have had to demonstrate at least 3 months of Stage 2 MU by September 30, 2014 for eligible hospitals and critical access hospitals (CAHs) and by December 31, 2014 for eligible professionals, do one more year of Stage 2 in 2015, and then move to Stage 3 by 2016. The CMS – ONC apparently will give all eligible providers more time to stay in Stage 2, stating: “Under the revised timeline, Stage 2 will be extended through 2016 and Stage 3 will begin in 2017 for those providers that have completed at least two years in Stage 2.” In essence, the start of Stage 3 is being delayed and, apparently (pending further rule making), nothing else.

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EHR Meaningful Use Audits – Coming Soon to an Office Near You!

September 24, 2013March 12, 2014 Ann Feldkamp Triebsch Electronic Health Records, Health Information Technology, HITECH Law, Meaningful Use EHR incentive program audit, eligible professional incentives for electronic medical records, HIPAA security risk analysis, hospital incentives for EHRs, linkedin, meaningful use audits, meaningful use of certified EHR

by Ann F. Triebsch

As we indicated in a posting last October and in a more recent August post , audits are now underway to verify that providers who received incentive monies from the Centers for Medicare and Medicaid Services (CMS) under the Health Information Technology for Economic and Clinical Health (HITECH) Act for implementation of a certified electronic health record (EHR) have indeed met the “meaningful use” (MU) criteria. The Office of the National Coordinator for Health Information Technology (ONC) has contracted with Garden City, NY-based Fagliozzi and Company to conduct these audits. The audits are designed to verify that providers receiving incentive payments are using certified EHR technology in a meaningful way. These audits can be a hassle, and there are risks if you cannot promptly provide what is requested—even if you are complying with the MU criteria.

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