Proposed Penalties for Information Blocking Violations

By: Kelli C. Fleming, Esq. with Burr & Forman LLP

On October 30, 2023, the Department of Health and Human Services (“HHS”) released a proposed rule establishing penalties against healthcare providers who violate the information-blocking rules implemented under the 21st Century Cures Act. The information blocking rules prohibit a healthcare provider, among other “actors” as defined in the rules, from taking any action that is likely to interfere with the access, exchange, or use of electronic health information contained in a designated record set (“EHI”), unless the action is required by law or an applicable legal exception is met. The information blocking rules apply to any request for EHI from any requestor, not just a request to access information from patients.

Currently, there are no penalties against healthcare providers for violating the information-blocking rules. The latest information-blocking proposed rule aims to change that by allowing for payment disincentives for healthcare providers who violate the information-blocking rules. For eligible hospitals and critical access hospitals, the disincentives include not being able to be deemed a meaningful EHR user in the applicable EHR reporting period. For eligible individual providers, the disincentives include not being able to be deemed a meaningful user of certified EHR technology in a performance period and therefore receiving a zero score in the Promoting Interoperability performance category of MIPS. For accountable care organizations and their participants, the disincentives include not being able to participate as an ACO for at least a year. 

“HHS is committed to developing and implementing policies that discourage information blocking to help people and the health providers they allow to have access to their electronic health information,” said HHS Secretary Xavier Becerra. “We are confident the disincentives included in the proposed rule, if finalized, will further increase the appropriate sharing of electronic health information and establish a framework for potential additional disincentives in the future.”

The proposed rule regarding the information blocking disincentives is currently available for public comment. Written or electronic comments must be received on or before January 2, 2024.

Kelli Fleming is a Partner at Burr & Forman LLP practicing exclusively in the firm’s Health Care Practice Group. Kelli may be reached at (205) 458-5429 or kfleming@burr.com.