- Hospitals and physicians will not face financial penalties for information blocking under the final rule prohibiting the practice from HHS' health IT arm due to be published any day now, according to the head of the agency.
- The 21st Century Cures Act stipulates HHS should mandate disincentives for providers found blocking the free flow of health data, but concerns about agency oversight have led the Office of the National Coordinator for Health IT to table provider penalties in the upcoming final regulation, which is still under review by the Office of Management and Budget.
- "This final rule won't dive into penalties for providers. There will be future rulemaking on that" likely from multiple agencies in HHS, ONC head Don Rucker told Healthcare Dive on the sidelines of the agency's annual conference in Washington, D.C., on Tuesday.
Cures, signed into law in 2016, requires HHS and ONC to regulate the interoperability of healthcare information and punish any wrongdoers impeding the electronic flow of health data. President Donald Trump's health administration has made unfettered data sharing a key prong of its health IT strategy, but the country's biggest health IT players, notably Epic Systems, have ramped up opposition to the twin rules as their final publication looms, expected by industry insiders early this year.
The final ONC rule enacting Cures, which has passed OMB's 90-day window for review earlier this month, will keep in place the four-year-old law's penalty for certified EHR vendors, health information networks and exchanges found blocking the free flow of health data: up to $1 million per event depending on severity.
However, the rule will not financially ding health systems, physician offices and other providers if their EHR or software systems act as barriers to interoperability, according to Rucker, news sure to assuage a key provider fear they'll be financially on the hook for the operations of their third-party software systems.
Congress wanted providers to be treated differently than health IT companies when creating Cures, Rucker told Healthcare Dive. The text of the bipartisan law states providers found guilty of information blocking by the Office of the Inspector General shall be "referred to the appropriate agency to be subject to appropriate disincentives using authorities under applicable Federal law, as the Secretary sets forth through notice and comment rulemaking."
"That part has not entered rulemaking. That part is yet to be determined," Rucker said. But HHS and ONC are currently trying to untangle a complicated web of agency jurisdictions and legalese to figure out an apt punishment for providers found blocking patients' health data — and how to regulate it.
The information blocking provisions in the ONC rule apply to all providers, unlike its sister rule out from CMS on the same timeline, which just affects providers participating in federal programs like Medicare, Medicaid and the Children's Health Insurance Program.
OIG, which enforces punishments for bad actors in healthcare, typically imposes penalties through federal programs, for example an audit or being kicked out of Medicare. ONC is currently trying to figure out if and how that modus operandi can be applied to physicians or providers that don't accept Medicare or aren't in a federal program.
As of this month, there are almost 26,000 licensed medical providers that do not accept Medicare for payment, according to CMS.
HHS is deliberating whether the federal government has oversight over providers' health IT systems if they're not reimbursed by federal dollars. That nuance will inform future rulemaking, Rucker said, while noting next steps on provider disincentives for information blocking will "make sense" and be "proportionate" to the nature of the data obstruction.
Rucker declined to comment on the past-due status of the ONC and CMS rules and whether they received a 30-day extension for fiscal review, noting the federal clearance process is a "complicated interplay of many people and many activities, and I think we'll leave it at that."