“Information Blocking” Rule Takes Effect But Enforcement Mechanism Is Delayed

A set of rules took effect this week that are designed to support secure patient access to electronic medical records, as well as smooth electronic exchange of patient information. The so-called “Information Blocking” rule was developed by the United States Department of Health and Human Services’ (HHS) Office of the National Coordinator for Health Information Technology (ONC).

Applicability and implementation began April 5; however, the ONC has not put an enforcement mechanism for the rule in place and is still receiving requests for clarifications about the rule and requests to delay enforcement.

In general, information blocking (IB) is a practice by a health IT developer of certified health IT, health information network, health information exchange, or health care provider that, except as required by law or covered by an exception in the ONC’s rules, is likely to interfere with access, exchange, or use of electronic health information (EHI). This essentially means that, if a health care provider receives a request from a patient/resident/client for electronic health information, the provider must not respond to that request in a way that unreasonably blocks the individual’s access to the information requested.

The rule defines health care provider broadly, to include “a hospital, skilled nursing facility, nursing facility, home health entity or other long term care facility,” among other categories. As this definition is written, it could apply to licensed assisted living facilities in Minnesota, but we are working to confirm.

The rule is complicated to understand because the definition of “information blocking” is written in such an open-ended way. Also, rather than give examples of activities that do constitute IB, the ONC rule provides examples of certain activities that do not constitute IB. For example, it does not constitute IB if a provider does not fulfill a request for electronic health information because it is not feasible for the provider to provide the information; or if the provider cannot provide the EHI in the specific manner the patient requests it, so long as certain specific conditions are met, including that the provider offers an alternative format. Finally, the IB rule is meant to live alongside a patient’s rights to access their health information under HIPAA.

LeadingAge is working with other associations who are partners in the Long-Term and Post-Acute Care Health IT Collaborative to seek clarification from HHS and advocate for more support for LTC providers. According to LeadingAge, the rule is intended to prod hospitals, physicians, and certified health IT developers who benefited from “meaningful use” health IT financial incentives relating to exchange of information. Because long-term care providers did not receive health IT incentives and do not have Certified Health IT or interoperability and electronic information exchange capabilities that match the acute care sector, LeadingAge believes our field should not, and as a practical matter will not, be subjected to the same expectations as those other sectors.

We are tracking implementation of the rule, as well as the efforts of LeadingAge, and we will provide additional information and education for our members as soon as we can to help you understand the rule and the enforcement timeline, how the rule interacts with HIPAA, and what expectations providers must meet when receiving a request from residents/clients or others for access to electronic health information.

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