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Association Comments on Information Blocking Disincentives

Shahid Zaman
January 11, 2024

In comments to the Department of Health and Human Services (HHS), America’s Essential Hospitals urged the agency to withdraw its proposed information blocking disincentives for health care providers and to propose a new rule in line with the association’s recommendations.

Under the 21st Century Cures Act, health care providers that the HHS Office of Inspector General finds are engaged in information blocking will be subject to disincentives through existing federal programs. In the rule, HHS proposed the mechanism for applying these disincentives to providers in violation of the information blocking prohibition. Hospitals would be subject to a penalty through the Medicare Promoting Interoperability Program, equal to a three-quarters reduction to the annual Medicare market basket update.

America’s Essential Hospitals urged HHS not to finalize the rule as proposed, because the disincentives would be premature, excessive, and not proportional to the underlying violations. Under HHS’ proposed disincentives, the magnitude of the penalty would depend on a hospital’s Medicare volume, instead of the scope of the violations. The association urged HHS instead to scale the disincentives to the number and severity of the information blocking conduct. The association also called for:

  • A two-year enforcement grace period from the publication of a final rule.
  • Clarification from HHS that disincentives would not apply to violations that arose from conduct before the effective date of a final rule.
  • Inclusion of procedural safeguards for health care providers, including adequate notice and an appeals process.

Contact Director of Policy Rob Nelb, MPH, at rnelb@essentialhospitals.org or 202.585.0127 with questions.

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