HHS Announces “Crackdown” on Information Blocking
By Alisa Pierce

Despite Texas Medical Association advocacy to the contrary, increased enforcement is on the horizon against physicians and health care professionals found to have committed information blocking pursuant to a strong admonition from the U.S. Department of Health and Human Services (HHS).  

In a Sept. 3 press release, HHS said it will direct additional resources to address information blocking, which occurs when entities restrict the access, exchange, or use of electronic health data. The agency has not clarified what those additional resources are. HHS says the Office of the Assistant Secretary for Technology Policy (ASTP)/Office of the National Coordinator (ONC) for Health Information Technology, and the HHS Office of Inspector General (OIG) will lead the initiative. 

“Today’s announcement is a warning to actors still engaging in information blocking to come into compliance with the rules governing the flow of patient information and a call to action for patients, providers, payers, local health departments, and health IT companies to report alleged information blocking,” the department said in the release. 

In June 2024, HHS’ rulemaking exercised the 21st Century Cures Act to establish “disincentives” for medical professionals found to have committed information blocking. Despite recommendations from TMA, the agency says it will move forward with the following: 

• A Merit-Based Incentive Program (MIPS)-eligible clinician (including those within a group practice) will lose their status as a meaningful electronic health records (EHR) user, resulting in a zero score in the MIPS Promoting Interoperability performance category.   

• A physician practice that is an accountable care organization (ACO), an ACO participant, or an ACO supplier may become ineligible to participate in the program for a period of at least one year. Consequently, they may not receive revenue they might otherwise have earned through the shared savings program.   

• Actors, such as physicians, who are determined to have blocked information will have their information posted to ONC’s website.   

In Texas, however, thanks to a new TMA-backed law, physicians are allowed three days to communicate the findings of certain serious or sensitive test results – like a cancer diagnosis – to patients before the results are electronically transmitted. These instances would not count as information blocking. 

ASTP found 1,420 cases of information blocking have occurred nationally since April 5, 2021, which is the applicability date of the information blocking regulations.  

HHS also said health IT developers of certified health IT may face a civil monetary penalty of up to $1 million per violation, consistent with OIG’s 2023 final rulemaking. Developers with products certified under the ONC Health IT Certification Program could also have certifications terminated and be banned from the Certification Program if found to have engaged in information blocking.  

To avoid information blocking, physicians must ensure their practices do not interfere with the access, exchange, or use of electronic health information. The American Medical Association recommends physicians take steps to comply with Cures Act requirements by:   

• Making sure they’ve implemented a process to evaluate and comply with the information-blocking requirements; 

• Contacting their EHR vendors to find out how they can help practices comply with the information-blocking requirements; and 

• Making their office notes, lab results, and other diagnostic reports available to patients as soon as the physician’s office receives an electronic copy. 

TMA also has a robust Cures Act resource page, which includes free CME on information blocking, a TMA white paper on the act (member log in required), and health information technology resources. 

HHS officials say they are already reviewing reports of blocking and providing technical support for investigations. Patients and physicians are encouraged to report alleged information blocking incidents through ASTP/ONC’s Report Information Blocking Portal.