Information blocking fines in full force

As of September 1, the Office of the National Coordinator for Health IT (ONC) can officially enforce penalties up to $1 million per instance against healthcare entities accused of impeding the transfer of medical records, otherwise known as information blocking.  

In assessing the penalty amount, the Office of Inspector General (OIG) of Health and Human Services (HHS) considers various factors, including the degree of information blocking, the resultant harm, the number of impacted patients or providers, the duration of the offense, financial repercussions, and whether the blocking was carried out intentionally. While the most substantial penalties are reserved for severe instances, there is no fixed baseline amount established. 

The OIG will not impose a penalty on information blocking that occurred before September 1.  

Currently the penalties only apply to health information networks (HINs), Health information exchanges (HIEs), certified health IT developers and entities that provide certified health IT. Healthcare providers are currently not subject to information blocking penalties.  

Enforcement priorities

The OIG anticipates receiving more claims than they can investigate. To effectively prioritize allegations and allocate resources, the OIG will utilize the following criteria for selecting cases for investigation:  

• Cases that resulted in, are causing, or had the potential to cause harm to patients. 
• Instances that significantly hindered a provider’s ability to provide care to patients. 
• Cases that were of prolonged durations. 
• Situations that led to financial losses for Federal health care programs, government entities, or private organizations. 
• Actions carried out with demonstrable knowledge of wrongdoing. 

How ONC will investigate information blocking claims

After receiving and prioritizing claims, the OIG will conduct an investigation that will include carrying out interviews and gathering information and documents. If OIG finds that no information blocking was committed, the case will be closed. If OIG determines information blocking did occur, the accused entity will have the opportunity to discuss their case and appeal the penalty.  

Information blocking claims statistics

Since opening the information blocking portal on April 5, 2021, the ONC has received 787 claims. Of those claims, approximately 84.6% are against healthcare providers while 13.4% are against health IT developers. Less than 1% of claims are against HIE/HINs. 

The majority of claims are filed by patients (~65%) or a patient representative (~15%) while a small fraction are filed by health care providers (~11%), presumably against health IT networks.  

Healthcare providers, health IT networks and entities under the ONC’s domain have known they needed to ramp up interoperability practices since the 21st Century Cures Act’s inception in 2016, but the technology and infrastructure challenges in achieving seamless data exchange have persisted, contributing to the persistence of information blocking concerns.