Feds Propose Information-Blocking ‘Disincentives’
By Alisa Pierce

The U.S. Department of Health and Human Services (HHS) released a proposed rule that would establish what it is calling “disincentives” that could amount to serious penalties for physicians and health care professionals found to have committed information blocking. 

The Texas Medical Association plans to submit comments on the proposal, which implements a provision of the 21st Century Cures Act and would apply to physicians and groups participating in the Merit-Based Incentive Payment System (MIPS) and the Medicare Shared Savings Program.  

If determined by the HHS Office of Inspector General (OIG) to have committed information blocking – knowingly and unreasonably interfering with the access, exchange, or use of electronic health information – physicians and groups could face the following under the proposal: 

  • A zero score in the promoting interoperability performance category of MIPS – which usually amounts to a quarter of a physician’s or group’s total MIPS score in a year and possibly significant payment consequences – for a physician or group required to report on that category; and 
  • Ineligibility for physicians to participate in an accountable care organization (ACO) program for at least one year, possibly resulting in the physician being removed from an ACO or prevented from joining one. 

The proposed rule was published in the federal register Nov. 1 and is available for public comment for 60 days. Written or electronic comments must be received no later than Jan. 2, 2024. TMA physician members interested in submitting feedback for TMA’s comment letter may respond to staff by Nov. 28.  

For now, practices should ensure they are complying with the information-blocking provisions by giving patients immediate electronic access to electronic health information upon request unless an exception applies.  

That information includes: 

  • Discharge summaries,  
  • History and physicals,  
  • Progress and consult notes,  
  • Imaging reports,  
  • Laboratory and pathology reports, and  
  • Procedure notes. 

Practices should also have policies and procedures in place ensuring compliance. 

The Office of the National Coordinator for Health Information Technology  and CMS will host an information session about the proposed rule on Wednesday, Nov. 15.  

For more information, TMA’s 21st Century Cures Act Resource Center has articles, explainers, webinars, white papers, and more to help practices with compliance.

Last Updated On

November 14, 2023

Originally Published On

November 14, 2023

Alisa Pierce

Reporter, Division of Communications and Marketing

(512) 370-1469
Alisa Pierce

Alisa Pierce is a reporter for Texas Medicine. After graduating from Texas State University, she worked in local news, covering state politics, public health, and education. Alongside her news writing, Alisa covered up-and-coming artists in Central Texas and abroad as a music journalist. As a Texas native, she enjoys capturing the landscape on her film camera while hiking her way across the Lonestar State.

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