Information Blocking- What Does it Mean for Healthcare Entities and Medical Practices?

By Tammie Lunceford

The 21^st Century Cures Act is a landmark bipartisan healthcare innovation law that went into effect on April 5, 2021. Cures includes provisions to promote health information interoperability and prohibit information blocking by “Actors,” which include health information networks, HIEs, health information technology developers of certified health IT, and health care providers.

The 21^st Century Care Act requires healthcare providers give patients access without charge to all health information in their electronic Medical records “without delay.”

Eight types of Notes must be shared:

• Consultation notes
• Discharge Summary
• History & Physical
• Imaging narratives
• Laboratory reports
• Pathology reports
• Procedure notes
• Progress notes

Clinical notes that do not apply to Information Blocking:

• Psychotherapy notes that are separated from the rest of the individual’s medical record and are recorded (in any medium) by a healthcare provider who is a mental health professional documenting or analyzing the contents of a conversation during a counseling session, group/joint or family counseling session. Information compiled in reasonable anticipation of, or use in a civil, criminal, or administrative action or proceeding.

Providers not subject to ONC oversight or OIG Civil Monetary Penalty but enforcement timing will depend on forthcoming (but not yet scheduled) rulemaking that will address additional information blocking “disincentives” for Providers as well as the federal agencies to which OIG will refer Provider-focused information blocking complaints. Medical providers should add Information Blocking polices to their Compliance Plan. The actions to improve technological access to electronic private health information will take updating of practice management systems and electronic medical records. It has been 15 years since we began implementing electronic medical records, but many providers have not improved workflow and processes, such as closing notes in a timely fashion or implementing a patient portal to improve access. 

Physicians, Providers and Administrators should:

• Review policies and procedures related to EHI
• Review EHR vendor compliance related to IBR
• Implement patient portal, API
• Define compliance related to documentation, closing notes-setting best practice timeline- prepare a training protocol
• Set rules related to result reporting
• Include compliance details related to the Information Blocking Rule in physician contracts, and review vendor contracts

Payer Compliance- API and Exchange Requirements:

By January 2022, Medicare Advantage organizations, Medicaid and Children’s Health Insurance Programs (CHIP), Fee for Service programs, Medicaid managed care plans, CHIP managed care entities, and QHP, Qualified Health Plan issuers on Federally Facilitate Exchanges are required to implement and maintain a standards-based Patient Access API and Provider Directory API. They must also participate in payer-to-payer exchanges to coordinate member care.

The May 2, 2021 compliance deadline for hospitals, including psychiatric and critical access hospital that participate in Medicare/Medicaid programs and have electronic medical records or administrative systems that can support the HL7 2.5.1 content or higher.

CMS does not require hospitals to purchase new systems if they cannot support HL7 2.5.1 or higher. CMS does not require the use of certified health IT to send the Admit, discharge, transfer alert, but the ADT alert must be electronic for discharge planning.

There are eight exceptions to the Information Blocking Rule. Doing what is best for the patient should always be front and center. Physicians have a responsibility to provide for the delivery of high-quality and safe patient care, a responsibility to provide patient care that meets professional standards, and a responsibility to advocate for the best interest of patients. The eight exceptions are:

Preventing harm, Privacy, Security, Infeasibility, Health IT Performance, Licensing, Costs, Content and Manner.

Tammie Lunceford is a Healthcare Consultant with Warren Averett.