Information Blocking

Information Blocking Rules now expand to all electronic health information

The 21st Century Cures Act required the Department of Health & Human Services, Office of the National Coordinator for Health Information Technology (ONC) to adopt rules preventing health care providers, developers of certified health information technology and health information exchanges from interfering with the access, exchange and use of electronic health information (EHI). Originally, the information blocking (IB) rules applied only to data elements included in the Core Data for Interoperability. Effective October 6, 2022, the IB rules now apply to all EHI included within the Designated Record Set (DRS) as defined in the Health Insurance Portability & Accountability Act (HIPAA) rules. (HIPAA defines the DRS as including medical and billing records, or records used by the health care provider to make decisions about individuals.)

Since the rules now apply much more broadly, ONC recently published a blog post with reminders about important features of the IB rules. Notable reminders include:

The IB rules apply not only to affirmative acts, but also omissions. For example, a provider's failure to comply with state law requiring reporting of contagious diseases could be an interference with access, exchange or use of EHI that violates the IB rules.

The eight exceptions to the IB rules are not "one size fits all", but rather are intended to apply to individual facts and circumstances. For example, there is an exception for a provider that is unable to provide access to EHI because it is infeasible. ONC points out that "What's infeasible for an IB actor in October 2022, may not be a year later."

The IB rules apply to all EHI, not only EHI contained in certified electronic health records.

Some of the exceptions to the IB rules require a response to the party requesting EHI (such as a patient requesting access to the health record) if the request is delayed or denied. For example, if a provider denies a request to access EHI on the grounds that the request is infeasible, the provider must provide an explanation to the requestor within ten days explaining in writing why the request is infeasible.

Details: Published: 11 October 2022 11 October 2022; Last Updated: 11 October 2022 11 October 2022

ONC issues new information blocking FAQ on when delay is interference

The Office of the National Coordinator for Health Information Technology (ONC) has published a new Frequently Asked Question (FAQ) on the information blocking regulations. ONC addressed the question of when a delay in providing patient access to electronic health information (EHI) constitutes interference with the patient’s access to EHI. Interference can potentially violate the information blocking rules under the 21st Century Cures Act (the Cures Act). ONC answers that a fact-based case-by-case assessment is required to determine whether delay constitutes interference.

ONC states that if the delay is due to the health care provider’s obligation to comply with state law and is no longer than necessary, this would not likely be considered interference. Also, where EHI must be manually retrieved from one system and moved to another system, a delay that is no longer than necessary will not likely be interference. On the other hand, if the provider has a policy imposing a delay on release of lab results in order for the provider to contact the patient, this would likely be deemed interference. Other examples that would likely be considered interference are where there is a delay in making information available through a patient portal, or a delay occurs in providing a patient’s EHI to an Application Programming Interface (API) that the patient has authorized.

Details: Published: 24 March 2021 24 March 2021; Last Updated: 24 March 2021 24 March 2021

ONC holds webinar to explain information blocking rules

The Office of the National Coordinator for Health Information Technology (ONC) held a webinar on February 4, 2021 to discuss ONC’s plans to develop industry guidance on the information blocking regulations adopted pursuant to the 21st Century Cures Act (the Cures Act). ONC has posted a collection of materials on all the Cures Act rules, and plans to develop a web page specific to the information blocking prohibition. Meanwhile, ONC is working on several outreach initiatives, including developing a presentation that would provide continuing medical education (CME) credit on information blocking. ONC encourages the public to use the Health IT Feedback and Inquiry Portal to submit requests for clarification, and may develop additional Frequently Asked Questions (FAQs) based on common themes. The Portal can also be used to report suspected instances of information blocking.

Details: Published: 14 February 2021 14 February 2021; Last Updated: 14 February 2021 14 February 2021

AMA, ACP, APA and others provide information blocking resources

The Department of Health and Human Services (HHS) information blocking rules come into effect on April 5, 2021. These rules prohibit health care providers and developers of health information technology (HIT) from unreasonably restricting rights to access, exchange or use electronic protected health information (EPHI). These are complex rules which will impose new compliance obligations on physician practices, hospitals and other providers. To assist in developing appropriate policies and procedures, a group of industry leaders has compiled several compliance resources. Participants include the American Medical Association, the American College of Physicians, the American Psychiatric Association, and the Medical Group Management Association, among others.

Details: Published: 09 February 2021 09 February 2021; Last Updated: 14 February 2021 14 February 2021

Digital Age MD