INFORMATION BLOCKING RULE

On February 11, 2019, the HHS Office of National Coordinator and Office of Inspector General released their long-awaited rule on information blocking.

A related but separate proposed rule on patient access to data and interoperability was released at the same time by the Centers for Medicare & Medicaid Services (CMS). Please review our issue brief on the interoperability rule, under the "Resources" tab.

 

This issue brief focuses only on the information-blocking rule.

What is the Rule About?

It would require that patients be able to access their electronic health information at no cost by 2020.

 

The rule is designed to create a more seamless flow of health information throughout the American health care system. The rule creates new technical and legal requirements to encourage health care organizations that collect and maintain patient data to share it electronically (and at no cost) with the patients themselves -- so people can more easily access their own health information and direct it to go wherever they want it to go.

ONC will accept comments until June 3, 2019

Deadline for Comments

Three Takeaways

  • The majority of this rule is highly technical and applicable to health care providers and their health IT software developers. 

  • The legal requirements are in response to complaints about entities and individuals that purposefully limited the availability and use of electronic health information, frustrating efforts to use modern technologies that would improve health care quality, efficiency, innovation, and value. The rule lists several examples of how information may be inappropriately blocked, and seven types of activities that will be considered reasonable and necessary exceptions to the rule against information blocking.

  • Several requests for information are included in this rule, including 13 questions (with many subparts) about how price information may be made more transparent.

How It Will Change Things

It is yet another step toward a data revolution in the American health care system that empowers individuals and their providers with information. Without this and other rules, people and their treating health care professionals do not have access to the most current, accurate or complete information.

Information blocking prevents providers from having access to the most current, accurate, or complete information on their patients.

 

The rule is also important because health care entities and their vendors are trying to comply with new Medicare payment rules that encourage the use of open APIs and interoperable systems, but do not know exactly which behaviors constitute “information-blocking.”

Background About The Rule

What is Information Blocking?

It is commonly defined as a healthcare provider or vendor creating a barrier to inhibit the exchange of health information.

The ONC already provided a definition of information blocking in a 2015 report to Congress.

“Information blocking occurs when a person or entity – typically a health care provider, IT developer, or EHR vendor – knowingly and unreasonably interferes with the exchange and use of electronic health information, which is a right protected by the Health Insurance Portability and Accountability Act (HIPAA) of 1996.”

In the 2015 report, ONC gave the following examples of information blocking, but acknowledged that patient safety or privacy may prevent disclosure:

  • Fees that make data exchange cost prohibitive.

  • Organizational policies or contract terms that prevent sharing information with patients or health care providers.

  • Technology designed or implemented in non-standard ways that inhibit the exchange of information.

  • Patients or health care providers become “locked in” to a specific technology or health care network because data is not portable.

The new proposed rule makes clear that some actions that do not constitute “information blocking”
  1. Preventing physical harm to a patient

  2. Protecting the privacy of electronic health information (EHI)

  3. Safeguarding the security of EHI

  4. Complying with the request will pose a substantial burden 

  5. Licensing of interoperability elements on reasonable and non-discriminatory terms

  6. Maintaining and improving health IT performance

  7. An actor may recover costs that are incurred from providing access, exchange or use of EHI

It has been more than 2 years since the 21st Century Cures Act was passed.

Want to know more?

 

Contact Julie Barnes at julie.barnes7@gmail.com

Text or call 703-304-1756

Julie Barnes, J.D. 

Phone: (703) 304-1756 

Email: julie.barnes@maverickhealthpolicy.com

P.O. Box 7117 2200 N. George Mason Drive, Arlington, VA 22207

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