Today, the Information Blocking spigot has officially opened. The Content & Manner Exception no longer applies; now, all electronic health information (EHI) cannot “blocked” if requested (unless another exception applies).
Under the Information Blocking Rule (IBR), a health information network (HIN) or health information exchange (HIE) type actor is one that “determines,” “controls,” or has the “discretion to administer” access, exchange or use of EHI between two or more unaffiliated entities. ONC has said that a separate entity is not necessary to trigger the IBR HIN/HIE definition of an Actor. Additionally, ONC has specifically pointed out that a health care system, for example, could wear two IBR actor hats: (1) as a health care provider, and (2) as a HIN/HIE.
Well folks, the Information Blocking Rule (IBR) April 5th compliance deadline is behind us at this point. However, I know that many of you are continuing to work through your top IBR challenges and questions one at a time. At this point, I have worked through many thorny IBR issues with numerous health care providers and health information exchanges (HIE), so I thought it might be interesting for me to share what is the main topic that I see Actors are focused on. And the winner is …..
The deadline for compliance with the Information Blocking Rule is just 12 days away! I am certain that all the Actors are working feverishly and diligently to come into compliance with these new requirements by this fast-approaching date. On the bright side, I suppose that we can all be relieved that ONC did not stick with its original deadline date of November 2, 2020. However, even with the extra time Actors may still be scrambling to get all of their ducks in a row by April 5, 2021. So, what are the actual consequences if everything is not “buttoned-up” in time?
On and after April 5, 2021, any actor’s agreements, arrangements, or contracts are subject to and may implicate the Information Blocking Rule. The Communications Condition of Certification (CCOC) requirements must be revised to remove or void the contractual provision that contravenes the CCOC requirements whenever the contract is next modified for any reason. A Business Associate Agreement should generally not prohibit or limit the access, exchange, or use of the EHI for treatment.
When an Actor wants to potentially deny access of EHI to a person who is suspected of some type of abuse of the individual (the “Abuser”) whose EHI is being sought, the natural inclination is want to look to the Information Blocking (IB) Rule’s Preventing Harm Exception to justify such denial. However, the IB Rule’s Privacy Exception offers additional options and, in certain ways, more flexibility for the Actor to deny a suspected Abuser’s request for EHI.
Over the last few weeks, I have come across a number of health care provider organizations that are under the incorrect assumption or belief that their EMR vendor is “taking care of” all that needs to be done in order for the provider to comply with Information Blocking. This is false. There are operational decisions and other process issues that must be addressed and can only be implemented by the Actor. Every health health care provider that meets the definition of an “Actor” should be taking active steps towards getting their organization positioned to comply with Information Blocking by April 5, 2021. Where should you start? I propose using a checklist as a simple starting point to begin “ticking off” your Information Blocking “to do” list . . .
The Information Blocking (IB) Rule is intended to work in sync with HIPAA, including the “right of access” the Privacy Rule grants to patients with regard to access to their own protected health information (PHI). However, as I continue to analyze how to implement various standards that overlap between these two regulations, questions about how to thread the needle on seemingly conflicting standards continues to come up. Today, I take a closer look at the difference between HIPAA’s “right of access” as compared to the Preventing Harm Exception found in the IB Rule. Specifically, this post considers how a covered entity health care provider . . .
the “Preventing Harm Exception” under the Information Blocking Rule is not only the most challenging exception to apply, but also the most difficult to interpret – particularly where some of the standards do not exactly track HIPAA, and still other imprecise language ONC used has made its interpretation uncertain. In this post, I will attempt to distill the Preventing Harm Exception down to its basic elements, as well as point out issues in its interpretation to be aware of.
The new year has much in store for electronic health information exchange compliance! Today’s post provides an overview of anticipated changes to the health information regulatory landscape in 2021, including increased interoperability efforts and telehealth expansion due to the coronavirus pandemic. It is not surprising that many of the topics discussed below are a direct result of the interoperability requirements created by the 21st Century Cures Act (“Cures Act”) enacted in December 2016.
Late last week, two new proposed rules were released which will affect the exchange of health information and HIPAA, among other things. The CMS and OCR proposed rules come in at over 347 and 357 pages respectively – so that’s a lot of meat to digest! At a high level, the CMS Proposed Rule aims to “improve the electronic exchange of health care data among payers, providers, and patients,” and “streamline processes related to prior authorization to reduce burden on providers and patients.” The OCR proposed changes to HIPAA take a bite out of patient access, minimum necessary, the HIPAA NPP and more . . .
On Monday, ONC posted a new Information Blocking Frequently Asked Questions resource! Here are a few of the highlights from all of the FAQs responded to by ONC:
Q: Are health plans or other payers subject to the information blocking regulation?
Q: For the period of time when Information Blocking is limited to USCDI data, how is an Actor expected to fulfill a request for USCDI data if they do not yet have certified health IT in place that includes an API with the USCDI standard?
Q: Is an Actor required to fulfill a request for access, exchange or use of EHI with all the EHI they have for a patient or should the amount of EHI be based on the details of the request?
ONC’s final rule on Information Blocking implements the 21st Century Cures Act and fleshes out what is and is not a prohibited information blocking practice. However, not all health care organizations and their vendors are on the hook for complying with this new regulation. In my post today, I want to drill down on the scope of health care providers that must comply with the Information Blocking Rule.
As the November 2nd deadline for compliance with ONC’s Information Blocking Rule nears, many health care providers – which are “Actors” subject to the Rule – are scrambling to reexamine their default settings for sharing various types of data, including lab results. In ONC’s Final Rule preamble, several commenters indicated that providers’ current organizational policies call for practices that delay the release of laboratory results so that the patient’s clinician has an opportunity to review the results before potentially needing to respond to patient questions, or has an opportunity to communicate the results to the patient in a way that builds the clinician-patient relationship.
Join me for a pair of 1.5hr Information Blocking Workshops designed to work thorough the nitty-gritty details of the Information Blocking Rule. The first Workshop will take place WEDNESDAY (9/30) so don’t delay! Workshops will include use cases and scenarios aimed at real challenges faced by health care providers looking to comply with these new regulatory standards for access and sharing of electronic health information. Registrants will receive 2 sample P&Ps, and much more!