By Nicholas Jimenez
Congress thought the HITECH Act of 2009 would promote an open exchange of Electronic Health Information (EHI) among healthcare providers. In Congress’ view, HITECH failed to accomplish its goal. It simply was not working.
To address the perceived lack of accessibility and portability of EHI, Congress has now enacted a successor to HITECH; the 21st Century Cures Act (45 CFR § 171.100). To promote improvements in access to EHI by both providers and software developers, the Cures Act contains provisions that prohibit “information blocking,” a term used throughout the statute to refer to any action taken by a healthcare provider that restricts access to EHI by patients or third-party software providers. The provision of the Cures Act prohibiting information blocking, originally set to go into effect on Nov. 2, 2020, has been extended due to the COVID-19 pandemic and is now Apr. 5, 2021.
The Cures Act broadly defines information blocking as any action that is likely to interfere with the access, exchange, or use of EHI. The rule is slightly different for healthcare providers. It defines information blocking conducted by a healthcare provider as an unreasonable practice that is likely to interfere with access, exchange, or use of EHI. Healthcare providers face the same first Cures Act compliance deadline in April of 2021.
If that seems like a difficult deadline to meet, there is some good news: compliance with the Cures Act’s information blocking provisions includes a grace period for certain types of data. From Apr. 5, 2021, through Oct. 6, 2022, only the data elements represented in the USCDI standard are subject to compliance with the information blocking provisions of the Cures Act. After the grace period, additional categories of EHI will become subject to the Cures Act requirements.
There’s a little more good news. The Cures Act requires EHI to be accessible but does not require that the healthcare provider permit access in the manner demanded by the person/entity requesting access. Put another way; you can decide how you want to produce the requested information. This gives healthcare providers some flexibility in how they permit access to EHI.
To further help healthcare providers in complying with the Cures Act, there are several exceptions to the applicability of the information blocking provision, including exceptions to prevent harm, maintain patient privacy and security, and an exception aimed at situations where compliance is simply infeasible due to the technology available to the healthcare provider. These exceptions may be your best friend in the short-term effort to become Cures Act compliant because software and app developers have an entirely different deadline for compliance with the Cures Act, so there may not be dedicated features built into your practice’s electronic health record system or support from your software provider in place by Apr. 5, 2021.
This is a crucial time of preparation for your team to understand the Cures Act and develop a compliance plan to address requests for information going forward.
Nick Jimenez is a new resident of Virginia Beach, and an associate in Goodman Allen Donnelly’s Norfolk office, where his practice will focus on healthcare law and commercial litigation. A graduate of Duquesne University School of Law, Nick awaits admission to the Virginia Bar, after having previously practiced in the Pittsburgh area.