Information Blocking Final Implementing Rule

On December 13, 2016, Congress passed the 21st Century Cures Act, which, among other things, sought to promote electronic health record (“EHR”) interoperability by prohibiting the practice known as “information blocking” – where an EHR prevents the sharing of electronic health information (“EHI”). In addition, the Act sought to promote patient access to their own EHI. In May, 2020, the Office of the National Coordinator for Health Information Technology (the “ONC”) published a final implementing rule for compliance by April 5, 2021.

Health care providers (including physicians), health information exchanges (HIEs), health information networks (HINs), and software developers must share with patients a specified range of information with some exceptions. While the right of a patient to access their records already exists under HIPAA, this new rule requires that information to be provided to patients immediately, such as through a patient portal. The regulations are complex, and include similar terminology to that used in the HIPAA regulations, but with different definitions (e.g., a “health care provider” is defined differently under the two sets of rules). Blocking of data includes the delay of data availability.

As a practical matter, health care providers must examine their policies and procedures, and revisit how and when they provide patients access to their EHI. This issue may be especially concerning to physicians who are not used to providing patients with such wide-ranging access to their records, or who otherwise place limits on how and when information is shared with patients. (e.g., “We don’t send lab results to the patient portal until 2 days after the doctor has reviewed them.”) Existing practices and policies that may restrict patient access to information will need to be carefully considered. Dan has developed a DFS List as a practical checklist to begin confronting this challenge.