Situation Report | March 29, 2021
By Frank J. Fanshawe, Partner, Lippes Mathias Wexler Friedman, and HCA’s General Counsel
The 21st Century Cures Act and a recently adopted final rule by the Office of the National Coordinator for Health Information Technology (ONC) in the U.S. Department of Health and Human Services prohibit so-called “information blocking” by health care providers and others.
Broadly speaking, information blocking includes any practice by a health care provider that unreasonably limits the availability and use of electronic health information (EHI) for authorized and permitted purposes. For example, a health care provider could be engaged in information blocking if it takes several days to fulfill a patient’s request for EHI when in fact the provider could have, using reasonable efforts, fulfilled the patient’s request in a much shorter timeframe.
The final rule applies to health care providers, including both home health agencies and hospices. (Although the definition of “health care provider” does not expressly reference “hospices,” it is extremely broad and appears to include virtually every entity that furnishes health care.)
The compliance deadline is April 5, 2021 (which was deferred from an original deadline of November 2, 2020).
Information blocking is a practice by a health care provider which the health care provider knows is unreasonable and is likely to interfere with, prevent, or materially discourage access, exchange, or use of EHI.
The final rule, however, sets forth “exceptions” that, if satisfied, are not considered information blocking. These exceptions are discussed below and can be viewed in full in the regulations at 45 CFR 171.100.
Additionally, if a health care provider’s practice is required by state or federal law, then it also is not considered information blocking.
Information Blocking Exceptions
The following exceptions apply and therefore do not constitute information blocking for purposes of this rule, as long as certain conditions are met:
- Preventing harm exception — Engaging in practices that are reasonable and necessary to prevent harm to a patient or another person.
- Privacy exception — Not fulfilling a request to access, exchange, or use EHI to protect an individual’s privacy.
- Security exception — Engaging in practices to interfere with the access, exchange, or use of EHI to protect the security of EHI.
- Infeasibility exception — Not fulfilling a request to access, exchange, or use EHI due to the infeasibility of the request.
- Health IT performance exception — Taking reasonable and necessary measures to make health IT temporarily unavailable for the benefit of the overall performance of the health IT.
In addition to the exceptions listed above, the final rule also sets forth the following three exceptions that involve procedures for fulfilling requests to access, exchange, or use EHI. As long as certain conditions are met, these do not constitute information blocking:
- Content and manner exception — Limiting the content of a response to a request to access, exchange, or use EHI or the manner in which a request is fulfilled.
- Fees exception — A health care provider’s practice of charging fees for accessing, exchanging, or using EHI.
- Licensing exception — A health care provider’s practice to license interoperability elements for EHI to be accessed, exchanged, or used.
Electronic Health Information
The final rule’s information blocking provisions apply to “electronic health information.” From the April 5, 2021 compliance date through October 6, 2022, EHI is limited to the information contained in the sixteen data classes for the United States Core Data for Interoperability (USCDI) standard. Those sixteen data classes include the following:
- Patient Demographics
- Vital Signs
- Allergies and Intolerances
- Smoking Status
- Care Team Members
- Clinical Notes
- Assessment and Plan of Treatment
- Health Concerns
- Unique Device Identifiers (for a patient’s Implantable Device)
- Provenance (i.e., the metadata of the records provided)
After October 6, 2022, however, the scope of EHI expands to include the full electronic “designated record set” within the meaning of HIPAA.
Fulfillment of a Request
Generally, a health care provider is required to fulfill a request to access, exchange or use EHI “in any manner requested.” If, however, the health care provider is technically unable to fulfill the request, the health care provider and requester can and should work on developing an alternative manner for the fulfillment of the request (such as the transmission of a secure file by e-mail).
In the extreme case where the health care provider and requestor cannot reach agreement on an alternative manner to fulfill the request, then, in that case, the health care provider would generally be required to fulfill the request for the EHI in the manner described in the final rule.
In the case of non-compliance, the Office of Inspector General (OIG) will refer health care providers to the “appropriate agency” for the imposition of “appropriate disincentives.” Future rulemaking will define the meaning of “appropriate disincentives.”
Interaction with Other Laws
Health care providers should know that the final rule does not limit or impair other rights a patient might have under federal or state law.
- The Final Rule compliance deadline is April 5, 2021.
- Home health agencies and hospices need to efficiently release EHI upon request in a way that is not “information blocking.”
- Home health agencies and hospices can deny or delay fulfilling a request for EHI if required to do so by law or if one of the “exceptions” apply.
- EHI initially includes the sixteen data classes for the USCDI standard but expands after October 6, 2022 to include the entire electronic “designated record set.”
- Home health agencies and hospices are required to fulfill a request to access, exchange or use EHI “in any manner requested.” If a home health agency or hospice is technically unable to fulfill the request, however, the home health agency or hospice and requester can and should work on developing an alternative manner for the fulfillment of the request.
To prepare for the final rule, home health agencies and hospices should:
- Review current procedures for EHI requests and modify any practices that could be considered information blocking.
- Update current written policies to address potential information-blocking issues.
- Provide training to employees who are responsible for responding to EHI requests.
Please contact your legal counsel if you have questions concerning the final rule.
Please note that this article is for general, informational purposes, is not legal “advice,” and does not create an attorney-client relationship. Because each case is unique, the information provided should be considered to be general in nature, and should never be considered a substitution for legal counsel. Readers should not take, or refrain from taking, any action based on information in this article without first seeking legal advice from competent counsel.