CMS published its enforcement rule implementing provisions of the 21st Century Cures Act, which was designed to promote interoperability and prevent information blocking within the healthcare system. Information blocking refers to practices by healthcare providers and other stakeholders that intentionally interfere with or prevent the access, exchange, or use of electronic health information (“EHI).
However, despite CMS’s ambitions, it has little enforcement authority under the current statutory framework. Disincentives only apply to:
- Medicare-enrolled Providers (e.g., MIPS eligible clinician);
- Must “knows or should know” that such practice is “unreasonable” and likely Information Blocking; and
- Must have been determined by the U.S. Department of Health & Human Services (HHS), Office of the Inspector General (OIG) to have committed Information Blocking.
Further, the procedural steps necessary for a determination of Information Blocking appear to be lengthy and bureaucratic as illustrated by the process map below.
Only upon a determination of Information Blocking, can CMS apply disincentives. And the disincentives are mostly a slap on the wrist that include:
- Payment adjustment under the Medicare Promoting Interoperability Program and the MIPS Promoting Interoperability Performance Category for failing to meet the requirements of the programs by committing Information Blocking.
- Would only be applied for the EHR reporting period or performance period of the calendar year in which OIG refers a determination of Information Blocking to CMS. Provider would be eligible to successfully meet the program requirements in future years.
Our Take: Interoperability and Information Blocking policies and enforcement are technically challenging and complicated. And continues to be a struggle for HHS to effectively implement.