Information Blocking

The Academy supports the goals of interoperability and patient access to electronic health information (EHI). However, the Academy has opposed enforcement mechanisms for physicians tied to the Merit-based Incentive Payment System (MIPS) program, arguing that a zero score in the Promoting Interoperability performance category leads to significant payment reductions and does not allow for variation based on the severity or frequency of an alleged infraction. The Academy has also raised concerns that providers may be unfairly penalized for restrictions imposed by their electronic health record vendor or hospital system — factors outside their direct control.

The Academy monitors information blocking regulations and enforcement developments closely, engaging with CMS and Office of the National Coordinator for Health Information Technology (ONC) through the annual rulemaking process. We provide members with timely guidance on compliance requirements and advocate for enforcement approaches that are proportionate, fair, and account for the realities of ophthalmic practice.

The Academy has flagged to CMS and ONC that the current disincentive structure — which ties physician penalties to the MIPS Promoting Interoperability performance category — does not distinguish between minor technical infractions and deliberate, sustained interference with patient data access.

In addition, the Academy joined the Physician Clinical Registry Coalition in signing a coalition letter opposing the proposed disincentives and urging regulators to adopt a more balanced enforcement approach. We continue to advocate for a more nuanced enforcement framework. We continue to advocate for a more nuanced enforcement framework.

To ensure compliance, practices should review their information-sharing policies and establish a workflow to ensure they are not unnecessarily limiting the sharing of EHI. Practices should also review ONC's information blocking guidance and fact sheets to better understand the rule's requirements, exceptions, and enforcement policies. The AMA has also published a Patient Access Playbook on information blocking with practical compliance guidance.

Information blocking rules are intended to promote the access, exchange, and use of electronic health information across the health care system — improving interoperability, care coordination, and patient access to their own health data. These provisions are established under the 21st Century Cures Act and are enforced by the Office of the National Coordinator for Health Information Technology (ONC) and the Health and Human Services Office of Inspector General (OIG).

What is information blocking?

Information blocking is a practice that interferes with, prevents, or materially discourages the access, exchange, or use of EHI. For health care providers specifically, information blocking occurs when a provider engages in a practice they know is unreasonable and is likely to interfere with access, exchange, or use of EHI.

Examples relevant to ophthalmology practices include:

• Charging excessive fees to make health information available, beyond levels permitted under the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HITECH), and state law
• Placing extreme limits on how long a requester has access to information — for example, using a one-time access code that expires quickly
• Refusing to transfer EHI to a patient-selected third party without a valid reason under the rule's exceptions

ONC has defined "reasonable and necessary" exceptions under which a provider would not be considered to have committed information blocking — including exceptions related to preventing patient harm, protecting privacy, maintaining security, addressing infeasible requests, and managing health IT performance.

Enforcement and penalties

Enforcement for health care providers takes the form of "disincentives" rather than civil monetary penalties. (Civil monetary penalties of up to $1 million per violation apply to health IT developers, health information networks, and health information exchanges — not to providers.) For physicians who are MIPS-eligible clinicians, the disincentive is a zero score in the Promoting Interoperability (PI) performance category. Because PI currently accounts for 25% of the total MIPS score, a zero in this category caps a clinician's maximum achievable score at 75 — likely resulting in a negative payment adjustment under current MIPS performance thresholds. These disincentives took effect July 31, 2024.

Importantly, if an individual physician commits information blocking, the disincentive applies only to that individual — even if they report MIPS as part of a group practice.

CMS and ONC have indicated that they will continue to explore additional disincentives for health care providers through future rulemaking, so the enforcement landscape may evolve.