Information Blocking: What Is It And Why You Need To Know

By now all health care providers have become painfully aware of the pitfalls of not being vigilant when it comes to considering the release of patients’ health information kept in electronic form (Electronic Health Information or “EHI”). Caution being the better part of valor, many physician providers and hospitals take the position that, when they aren’t sure whether or not they can release EHI, they choose to not release it.

Welcome to the new world of “Information Blocking” (“IB”). A part of the Federal 21st Century Cures Act, the Information Blocking (IB) Rule now forces providers to begin with the presumption that EHI is to be disclosed unless they can clearly determine that the EHI should not be disclosed. We now must shift from a “may disclose” attitude to a “shall disclose unless an exception to disclosure applies or disclosure is prohibited by law” attitude.

Information Blocking means a practice that:

• Except as required by law or covered by an exception, is likely to interfere with access, exchange, or use of electronic health information; and,
• If conducted by a health information technology developer, a network or exchange knows, or should know that such practice is likely to interfere with, prevent, or materially discourage access, exchange or use of EHI; or,
• If conducted by a health care provider, such provider knows that such practice is unreasonable and is likely to interfere with the access, exchange, or use of EHI.

The definition of EHI is based upon the HIPAA definition of Designated Record Set (DRS) but is not limited to HIPAA Covered Entities. DRS includes medical and billing records of a covered health care provider, specific health plan records such as enrollment, payment and claims records and records used by a covered entity to make decisions about individuals. Also included will be pricing information, algorithms or processes that create EHI as well as information resulting in clinical interpretation or relevance of algorithms or processes.

If the data that is requested is completely de-identified (meaning identifying information such as names, addresses, telephone numbers, social security numbers, etc. is removed), it is not subject to the IB rule. If disclosure of requested information is blocked pursuant to law, it is not subject to the IB rule. In order to be considered blocked as required by law, the right to interfere with access, exchange or use of the EHI must be explicitly required by state or federal law. Note that blocking as required by law is not the same thing as blocking that may be allowed under law.

The law states that Information Blocking will almost always be implicated if a provider interferes with: the access, exchange or use of EHI for patient access to their own EHI and use without special effort; treatment and care coordination; payers obtaining EHI to assess clinical values/promote transparency, quality improvement; and the support of patient safety and public health.

The IB Rule states that a provider will be in violation if it knows that its practice is unreasonable and is likely to interfere with the access, exchange or use of EHI.

Question: What do medical practices and hospitals need to do?

Answer: Assess their policies and processes to ensure that they are compliant with the IB Rule and to prevent the improper refusal to disclose EHI.

For further information, please Contact Us.