The 21st Century Cures Act and Healthcare Information Blocking

What is information blocking?

Anything a healthcare provider knows is likely to interfere with the ability of a patient or other authorized person(s) to access, exchange, or use electronically protected health information (ePHI).

• Taking longer than allowed to respond to patients’ requests for access to their records, or not responding at all.
• Charging patients a fee to access their records via a patient portal/EHR.
• Setting up policies, processes, or software systems in a way that limits or slows down a patient’s access to their records.

What makes this different from patient access under HIPAA?

If you keep electronic records and a patient requests an electronic copy, the Information Blocking Rule requires that you provide it electronically. However, you are not required to buy new software or put new systems in place.

What if I do not have the technology or cannot respond to a patient’s request?

You must respond with the information as requested unless one of the 8 exceptions applies. For example, the Content and Manner exception would apply if you do not have the exact electronic format requested. You would be able to provide the records to the patient in another agreed-upon electronic format. Be sure to document each time an exception is used.

What should I do to prepare?

• Review your practice’s release of information/records request process and related policies and procedures to make sure you are not interfering with access.
• Understand what choices are already available to you to provide patients with access to their electronic records. This may mean contacting your software provider or IT Support.
• Only charge fees for electronic copies of records if you provide them on a physical device like a USB or CDROM. Limit the fee to the cost of the device.

Are there penalties for information blocking?

• Not yet. Although the Information Blocking Rule is already in effect, the Office of the Inspector General has not yet established penalties for healthcare providers.
• Medicare providers should check with CMS for penalties related to Promoting Interoperability attestations. The Information Blocking Rule does not directly affect CMS’s Promoting Interoperability program.