Information blocking

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Information blocking is a practice which prevents free access, exchange or use of authorized electronic health information (EHI) between two healthcare entities. [1] These entities are known as "actors" in the law and the Office of the National Coordinator for Health Information Technology (ONC) defines these actors to fall in to 3 main categories: providers,IT developers and Health Information Exchanges and Networks.[2]

When the law was finalized in March 2020, actors were given 6 months to prepare to be in compliance, and would start to be penalized after November 1, 2020. However, because of Covid-19, the ONC has extended this preparation period to the end of January 2021. This concept was first described by the 21st Century Cures Act, and it included four examples of information blocking.

1. The first prohibits writing “terms, policies, or business or organizational practices” restricting authorized use of EHI. It also prohibits any restrictions on exchange of authorized EHI for the use of treatment and “other permitted purposes” and includes transitions between two EHR technologies.[3]

2. The second example bans charging “unreasonable prices or fees” for the exchange of EHI. [3]

3. The third example prohibits the development of health information technology in a way which would make information sharing cost prohibitive.

4. The fourth example forbids the development or implementation of health information technology that locks certain users or information from being exchanged. This may lead to “fraud, waste or abuse” as well as “impede innovations and advancements in health information access, exchange and use.” [3]

Penalties

The law also describes the penalties which may be enforced if a healthcare entity engages in information blocking Developers, Networks and Exchanges: If a healthcare entity is investigated by the Inspector General and is found to be guilty of information blocking, then they are subject to a “civil monetary penalty” up to $1,000,000. [4] Provider: An individual found guilty of information blocking by the Inspector General is subject to “appropriate disincentives” which can be enforced by authorities under Federal law. [4]


Exceptions

The 21st Century Cures Act originally defined the idea of information blocking, and the ONC have outlined eight exceptions to information blocking.[4] Refusing to share EHI is not considered information blocking in the following scenarios: 1. Preventing Harm Exception: If the actor feels sharing of EHI will lead to harm to a patient or other person.

2. Privacy Exception: If the actor feels sharing EHI will invade a patient’s privacy

3. Security Exception: Actors can refuse “access, exchange, or use” of EHI if they feel doing so would compromise security of the information. [5]

4. Infeasibility Exception: If sharing of EHI is not feasible – some examples include uncontrollable events such as natural disasters, public health emergencies, labor unrest, or internet service interruption.

5. Health IT Performance Exception: If the technology needed to share EHI is temporarily unavailable or needs to be taken offline for maintenance.

6. Content and Manner Exception: An actor may limit the content shared in response to a request. They may also change the avenue for exchanging EHI if they do not have the technology or cannot reach “agreeable terms” with the requestor. [5]

7. Fees Exception: Reasonable fees can be charged for allowing access, exchanging, or using EHI.

8. Licensing Exception: An actor can license certain “interoperability elements” in order to “protect the value of their innovations and charge reasonable royalties”. [5]


1. Information Blocking. (2020, August 21). Retrieved October 26, 2020, from https://www.healthit.gov/topic/information-blocking

2. Connell, Julia, and Ye Hoffman. “Confused about the New ONC Information Blocking Requirements? We've Got Answers.” Advisory Board, 17 July 2020, www.advisory.com/research/health-care-it-advisor/it-forefront/2020/07/information-blocking.

3. 21st Century Cures Act § 3022, 42 USC § 300jj–52 (2016). Retrieved October 26, 2020, from https://www.congress.gov/114/plaws/publ255/PLAW-114publ255.pdf

4. Roth, M. (2020, March 12). Information Blocking: What to Know and How to Navigate Next Steps. What You Need to Know About Information Blocking | HealthLeaders Media. https://www.healthleadersmedia.com/innovation/information-blocking-what-know-and-how-navigate-next-steps.

5. Cures Act Final Rule, Information Blocking Exceptions. (2020, August 21.) Retrieved October 26, 2020, from https://www.healthit.gov/topic/information-blocking [5 – healthit.gov, exceptions PDF]

Submitted by Anna Nadhan, MD