Information Blocking In Healthcare and HIT To Be Outlawed

Yesterday, Congress passed the 21st Century Cures Act to provide funding for President Obama’s “Cancer Moonshot” program and to ease drug approvals.  One of the less publicized parts of the bill provides for banning certain data practices by digital health vendors and health care providers known as “information blocking”.

What is “information blocking”?  The bill defines it as a practice that is likely to interfere with, prevent, or materially discourage the access, exchange, or use of electronic health information.  There’s a double standard for vendors compared to providers.  A digital health vendor is in violation of the new law if it knows or should know it is engaged in information blocking.  A health care provider is in violation of the new law if its information blocking practices are unreasonable.  In other words, the law leaves open a path for providers (but not vendors) to engage in information blocking so long as they have a good reason to do so. 

How will you know if you’re information blocking?  The bill lists several broad categories of practices that will be considered information blocking:

·        Restricting the manner in which information may be accessed, exchanged, or used for treatment and other permitted purposes.

·        Implementing health information technology in non-standard ways that are likely to increase the complexity or burden of accessing, exchanging, or using information.

·        Implementing health information technology in ways that are likely to restrict the access, exchange, or use of information with respect to exporting complete information sets or transitioning between IT systems

·        Implementing health information technology in ways that are likely to lead to fraud, abuse, or impede innovations and advancements in health information access, exchange, and use, including care delivery enabled by health information technology.

When does the ban on information blocking go into effect?  The ban begins 30 days after the bill is enacted into law by the President's signature, and it is forward-looking only.  Past practices will not be investigated or punished under the new law.

What are the consequences of information blocking?  Going forward, regulators will have the authority to investigate information blocking practices by vendors of certified health information technology and health care providers.  Certified health information technology vendors caught information blocking are subject to fines of up to $1,000,000 per violation.  It’s less clear what could happen to providers caught information blocking, as they will be “referred to the appropriate agency to be subject to appropriate disincentives.”  

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Tripp Stroud