Understanding Information Blocking Disincentives: What MIPS Participants Need to Know
If you’re curious about the information blocking disincentives introduced this past summer, you’re in the right place.
In June 2024, the Department of Health and Human Services (HHS) released a final rule establishing “disincentives” for health care providers who are found to have engaged in information blocking. This includes disincentives for clinicians participating in MIPS.
In this blog post, we’ll give you a high-level overview of information blocking, the newly established disincentives, and what this means for you.
What is Information Blocking?
Information blocking refers to practices that interfere with the access, exchange, or use of electronic health information (EHI). For health care providers, the bar to be found to be information blocking is a little higher – they must know that the practice or action is unreasonable and is likely to interfere with the access, exchange, or use of EHI.
Some examples are:
- Charging patients excessive fees to view their health records,
- Policies that delay information release (e.g., a policy to delay the release of any lab test results for all patients),
- Disabling EHR functionalities to restrict data access,
- Discouraging/preventing a patient from sending their EHI to third-party apps,
or - Preventing other clinicians involved in a patient’s care from obtaining the information needed for treatment.
Information blocking does not include actions taken to protect health information as required by law, such as compliance with the Health Insurance Portability and Accountability Act (HIPAA).
Under the 21st Century Cures Act, information blocking is illegal. MIPS participants are required, in the Promoting Interoperability (PI) category, to attest that they have not knowingly engaged in information blocking.
To learn more about the information blocking regulation, check out our previous blog on this topic.
Who Will Be Impacted by the Disincentives Rule?
On July 31, 2024, the Establishment of Disincentives for Health Care Providers That Have Committed Information Blocking rule became effective. This rule established penalties for certain health care providers found to have engaged in information blocking, as determined by the HHS Office of the Inspector General (OIG).
The penalties apply to providers participating in the following programs:
- Quality Payment Program
- Medicare Promoting Interoperability Program
- Medicare Shared Savings Program
According to the rule, OIG will prioritize four main criteria when deciding whether to investigate a provider for information blocking:
- Potential for patient harm,
- Impact on provider’s ability to deliver care,
- Duration of information blocking (whether it occurred over a long period of time),
and - Financial impact on federal health care programs or other government and/or private entities.
How Will OIG Conduct Investigations?
Below is an overview of OIG’s investigation process for information blocking claims related to health care providers:
What Happens if I am Found to Be Information Blocking?
OIG will refer the determination to CMS. CMS will then apply the disincentive to MIPS clinicians and/or groups.
Can I Appeal the Determination?
To file an appeal, the clinician or group must follow the designated MIPS appeal process (i.e., submit a targeted review). Currently, there is no separate opportunity for providers to appeal an OIG determination of information blocking.
What is the Disincentive for MIPS Participants?
MIPS participants (excluding audiologists) who have committed information blocking will not be recognized as “meaningful EHR users” for the performance year in which OIG refers its determination to CMS. Therefore, clinicians who participate in MIPS and report on or are required to report on Promoting Interoperability (PI) will receive a score of 0 in the PI category.
In addition, the Assistant Secretary for Technology Policy (formerly ONC) will publish a “wall of shame” on its website. It will list the actor and its business address, the identified information blocking practices, the disincentive applied to the health care provider, and where to find other information about the information blocking determination.
Note: The health care provider that committed information blocking will get a PI score of 0 in the performance year in which OIG refers its determination to CMS. This means that the disincentive may be applied for a performance year after the act of information blocking occurred.
What if I Qualify for Automatic Reweighting of PI?
CMS will not apply the disincentive if the PI category is already being reweighted. For example, small practices that qualify for automatic reweighting would not be affected. They would only receive the PI score of zero if they submitted data for PI.
What if We Report MIPS at the Group Level?
If only one or a subset of individual clinicians within a reporting group is found to have engaged in information blocking, CMS will apply the disincentive as follows:
- If the group reports only at the group level:
- The entire group will get a PI score of zero.
- If the group reports both at the group level and the individual level (for the clinicians found to be information blocking):
- Only the individual(s) found to be information blocking will get a PI score of zero; the rest of the group will not be affected.
If the entire group is found to have engaged in information blocking, CMS will apply the disincentive to the entire group. If the group reports at the group level, the entire group will get a PI score of zero; if the group reports at the individual level, every individual under that group’s TIN will get a PI score of zero.
What if We Have Multiple Information Blocking Violations in OIG’s Referral?
Each referral of an information blocking determination by OIG to CMS can only affect a MIPS eligible clinician’s PI score for the single performance year in which OIG sends CMS the information blocking referral. Therefore, if OIG sends a referral (or multiple referrals in the same year) that includes multiple information blocking violations (including over multiple years), it will only cause a PI score of 0 for a single performance year. As long as the MIPS eligible clinician does not receive an additional referral of an information blocking determination by OIG in the following year, they can be scored based on performance in the PI category.
How Can MIPS Participants Avoid Penalties?
All MIPS participants should become familiar with the information blocking regulation. It’s important to comply with the rule and understand how to claim an exception to the attestation in the PI category if needed.
If you must claim an exception, be sure that you have sufficient documentation to back up your claim. We recommend reviewing our webinar for guidance.
What If I Have More Questions?
If you have specific questions about information blocking or other regulations impacting MIPS, we’re happy to provide personalized assistance! Contact us and we will have your back.
Next Steps
- Share this information with your colleagues.
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- If you are an Anatomy IT client, contact your MIPS Expert if you have any questions.
- If you are not an Anatomy IT client, contact us to learn more about our MIPS Success Plan and to reap the rewards of our combined decades of experience.
Written By: Sarrah Hakim, MHSA
About the Author: Sarrah is a Manager of Health Policy at Anatomy IT.
