Much has changed in the reporting of radiology findings since the 21st Century Cures Act (Cures Act) was signed into law on December 13, 2016. The Cures Act was designed to help accelerate new innovations and advances in the delivery of patient care, flowing significantly from its “information blocking” prohibitions.  Even without enforcement mechanisms in place, the information blocking rules have stimulated a growing number of imaging centers and radiology departments to terminate long-standing embargos on patient access to reports that were in place to allow time for treating physicians to receive, review, and discuss radiologists' findings with their patients. Now it is not uncommon for patients to have immediate access to their written radiology reports. This development has also generated increased patient engagement, including many radiology providers now providing access to more patient-friendly radiology reports that make use of interactive graphics and more easily understood “lay language" that promote understanding.

These changes in radiology reporting occurred despite the absence of mechanisms to enforce information blocking prohibitions. Now, this week,  the U.S. Department of Health and Human Services (HHS) has released a proposed rule with proposed disincentives for healthcare providers found by the HHS Office of Inspector General (OIG) to have committed information blocking.

The OIG is proposing various “disincentives” for non-compliance with the information blocking rules, such as:

• Denial of eligibility to hospitals or critical access hospitals (CAHs) as meaningful electronic health record (EHR) users with the loss of 75 percent of the annual market basket increase to hospitals, and reductions in Medicare payments to CAHs to 100 percent of reasonable costs rather than the current 101 percent. 
• Loss of eligibility as meaningful users of certified EHR technology in a performance period resulting in a zero score under Medicare's Merit-based Incentive Payment System (MIPS) payments to physicians. 
• Making providers or suppliers that are Accountable Care Organization (ACO) participants ineligible to participate in the Medicare Shared Savings Program for a period of at least one year.

Despite these tools, HHS took pains to state that, even if the proposed disincentives are adopted, the OIG will have discretion to choose which information blocking complaints to investigate. OIG will select from information blocking complaints those cases for investigation that they believe are consistent with its enforcement priorities. 

Nevertheless, those hospital radiology departments and imaging centers that continue to universally embargo radiology reports may want to consider steps to assure immediate patient access. Of course, those same imaging providers are permitted under the information blocking rules to make individualized determinations in good faith to hold back certain patient's report without it being considered interference. 

The proposed rule is slated to be published in the Federal Register on November 1, 2023, and will be available for public comment for 60 days.