The 21st Century Cures Act proposes to establish disincentives for healthcare providers who committed information blocking. In January of 2024, Office of the National Coordinator for Health Information Technology (ONC) released the proposed rule entitled “Establishment of Disincentives for Health Care Providers That Have Committed Information Blocking”. In the comment letter, APA voiced its concerns about the proposed rule including that it:

• will disincentivize Medicare participation among psychiatrists, counteracting a key strategic priority of CMS to improve psychiatric care access for Medicare beneficiaries;
• inadequately acknowledges diverse practice resources, capabilities, and infrastructure, risking enhancing inequity across practices;
• focuses penalties on the wrong actors by penalizing individual clinicians; and
• has inadequate protections for clinicians acting in good faith including a lack of an appeals process.

In its final rule released on June 24, 2024, ONC did not address the above concerns. In addition, ONC did not:

• specify a central, consistent appeals process;
• discuss the potential disproportionate impact of potentially imposing cumulative disincentives on small and less resourced practices;
• establish a clear process to reconcile multiple disincentives and ensure fair and nonduplicative or punitive enforcement for providers participating in multiple program;
• specify timeframe for how long a provider’s information will be posted on ONC website;
• provide guidance on the potential of a decline in MIPS participation.

Because of the multiple comments submitted, ONC did address the issue of practices who submit as a group finalizing that only the provider who is found to be violating information blocking rules will be subject to the disincentive and the entire group would not be penalized. ONC has also provided exceptions as to what is considered information blocking including an infeasibility exception due to technical limitations in providing the data. ONC and CMS has also confirmed that providers following more stringent data laws, such as 42 CFR Part 2, will not be violating the information blocking rules.

APA will continue to engage with ONC, our partners, and members as this rule is implemented.