Are You Complying with Information Blocking Rules?

Healthcare providers who fail to give patients access to their electronic health records without charge and without delay may be running afoul of a provision in the 21st Century Cures Act. These so-called “information blocking rules” went into effect April 5, 2021.

The Cures Act was signed into law in December 2016 and is designed to speed up medical product development, as well as bring new innovations and advances to patients. The Information Blocking Rule requires providers to share patient data via a Patient Passport, an online portal where doctors can share information such as test results and other clinical information, as well as communicate with patients.

The following are some examples of information blocking:

  • Failing to respond to requests for electronic health records in a timely manner
  • Failing to post available records to the patient portal
  • Charging unreasonable fees to access records
  • Taking other steps to prevent or discourage patients from accessing their electronic health records

Although patients have had the right to request their medical records, the Information Blocking Rule reflects a sea change in that now those records (which may include a provider’s notes) can be accessed by patients by simply logging into a patient portal.

There are eight types of clinical notes that must be shared:

  • Consultation notes
  • Discharge summary notes
  • History and physical
  • Imaging narratives
  • Laboratory report narratives
  • Pathology report narratives
  • Procedure notes
  • Progress notes

Because this information is now readily available to the average person, providers would be well-advised to be more careful about the language they use and avoid medical jargon, so it is not misunderstood or misinterpreted by patients.

The Cures Act specified four types of entities referred to as “actors” who must comply with information blocking requirements:

  • Health care providers
  • Health IT developers of certified health IT
  • Health Information Networks (HINs) or HIEs (HIN and HIE are combined into one defined type in the Final Rule)

Under the Cures Act, practitioner is any of the following:

  • A physician assistant, nurse practitioner, or clinical nurse specialist
  • A certified registered nurse anesthetist
  • A certified nurse-midwife
  • A clinical social worker
  • A clinical psychologist
  • A registered dietitian or nutrition professional

It’s important to note, however that the Cures Act established eight exceptions. It will not be information blocking:

  • Preventing Harm
  • Privacy Exception
  • Security Exception
  • Infeasibility Exception
  • Health IT Performance Exception
  • Content and Manner Exception
  • Fees Exception
  • Licensing Exception

For a detailed explanation of the exceptions click here.

The Office of the National Coordinator for Health Information Technology (ONC) has indicated it will exercise discretion in enforcing all new requirements under 45 CFR Part 170 that have compliance dates and timeframes until 3 months after each initial compliance date or timeline identified in the ONC Cures Act Final Rule.

The Health Law Offices of Anthony C. Vitale recommends that those impacted by the rule have policies and procedures in place to comply as quickly as possible. The Department of Health and Human Services Office of Inspector General has proposed a rule amending civil money penalty (CMP) regulations for information blocking by providers which can be found here.

We can assist in reviewing your access plan. Give us a call at 305-358-4500 or send an email to info@vitalehealthlaw.com and let’s discuss how we might be able to help.

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