The Department of Health and Human Services proposed a rule Wednesday to impose financial penalties on healthcare providers that block electronic health information sharing.
The 60-day public comment period begins immediately, with feedback due by January 2, 2024. If finalized, the rule would allow the HHS Office of Inspector General to refer providers—including hospitals, physicians, and accountable care organizations—to the Centers for Medicare and Medicaid Services for enforcement under existing programs.
Penalties under the proposal
Providers found interfering with access, exchange, or use of electronic health information could face three types of disincentives.
In the Medicare Promoting Interoperability program, eligible hospitals or critical access hospitals would lose their status as “meaningful” electronic health record users. Hospitals would forfeit 75% of their annual market basket increase. Critical access hospitals would see payments drop from 101% to 100% of reasonable costs.
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Clinicians in the Merit-based Incentive Payment System (MIPS) would receive a zero score in the Promoting Interoperability category. That category typically accounts for about a quarter of their total MIPS score.
The most severe consequence applies to providers in the Medicare Shared Savings Program. Accountable care organizations, their participants, or affiliated suppliers could be barred from the program for at least a year.
The proposal follows earlier enforcement actions targeting other parts of the health data system. Since April 2021, providers have been required to share electronic patient records under the 21st Century Cures Act. The definition of electronic health information was initially limited to a core set of data. In October 2022, it expanded to include all electronically available health information.
HHS has already set civil penalties—up to $1 million per violation—for health IT developers, exchanges, and networks. The new rule would address providers directly.
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The Office of the National Coordinator for Health IT has outlined eight exceptions where blocking might be permitted, such as protecting patient privacy or ensuring system security.
Next steps
HHS is also seeking input on potential future disincentives.
A session hosted by the ONC and CMS is scheduled for November 15. The public comment period remains open until the January deadline. After reviewing feedback, HHS will finalize the rule.