Three Procedural Exceptions
Content and manner. A provider can limit the content of a response to a request to access, exchange, or use EHI, or the manner in which it fulfills a request, subject to certain conditions. The purpose of this exception is to provide flexibility for providers concerning the scope of EHI to be included in the provider’s response and the manner in which the request is fulfilled. If a request is fulfilled in an alternative manner it must comply with a priority order and satisfy the fees and licensing exceptions, as applicable.
Explore This Issue
June 2021Fees. A provider can charge fees, including fees that result in a reasonable profit, for accessing, exchanging, or using EHI. Fees should relate to the development of technologies and the provision of services that enhance the technology and interoperability. Notably, this exception doesn’t protect rent-seeking or opportunistic fees, or exclusionary practices that interfere with access to, exchange of, or use of EHI.
Licensing. Under this exception, a provider can license interoperability for EHI to be accessed, exchanged, or used. This enables a provider to protect the value of their innovations and earn returns on investments they have made to develop, maintain, and improve those innovations. This exception is more likely to be used by health IT entities rather than healthcare providers.
Common examples of information blocking include unnecessary delays in the provision of patient test results … or interfering with an electronic health record that would generally enable electronic health information to be shared with other providers or patients.
Enforcement and Compliance
A provider’s act of interfering with or delaying the release of EHI that doesn’t satisfy one of the above exceptions will not automatically constitute information blocking, and any suspect practices will be evaluated on a case-by-case, facts-and-circumstances basis to determine whether information blocking has occurred. The Office of the Inspector General will investigate allegations of information blocking to determine whether a violation has occurred.
The HHS is currently engaged in rulemaking to establish enforcement disincentives for providers. Providers should consult with healthcare counsel and compliance officers regarding information blocking practices and exceptions. Improper information blocking conduct can be reported through the ONC’s Information Blocking Portal.
As a threshold, providers should review the information blocking definition, examples, and applicable exceptions set forth in the Cures Act and associated guidance and commentary released by the HHS and, if necessary, revise current policies, procedures, and forms regarding the release of patient EHI. It’s recommended that providers review their EHR contracts to determine any compliance barriers that may exist. Providers should also contact laboratory and imaging providers to determine appropriate time frames for access to patient results.
Finally, providers and their workforce should participate in any training programs necessary to comply with the information blocking framework. Practice managers may consider creating a reference sheet and talking points for staff to use when responding to patient or other provider requests for access to, exchange of, or use of EHI.