When do providers need to comply with this rule?
Providers are required to comply with the rule by April 5, 2021.
How much data and what type of data am I expected to share under this rule?
Until October 5, 2022, EHI that you are required to share is limited to the data elements represented in the US Core Data for Interoperability (USCDI) V1 standard. Please note that this includes labs/diagnostic reports and clinical notes, including consultation notes, discharge summary notes, history & physical, imaging narratives, laboratory report narratives, pathology report narratives, procedure
notes, and progress notes. It does not apply to psychotherapy notes or information compiled in reasonable anticipation of, or use in, a civil, criminal or administrative action or proceeding.
After that date, electronic health information (EHI) required to be shared under this rule is expands to electronic protected health information (ePHI) in a designated record set (as defined in the Health Insurance Portability and Accountability Act (HIPAA)
regulations) regardless of whether the records are used or maintained by or for a covered entity. The HFMA ONC Rule summary has a helpful overview that provides context on this provision:
- ONC had [previously] proposed a very expansive definition of EHI which included but was not limited to electronic protected health information (ePHI) and which would have encompassed health information that is created or received by health care providers
and those operating on their behalf; health plans; health care clearinghouses; public health authorities; employers; life insurers; schools; or universities. Some commenters objected to the proposal noting its breadth and concern over their ability
to discern what health information they would have to make available; others noted a heavy compliance burden if they were required to separate EHI from ePHI to comply with both HIPAA and the information blocking rules.
- CMS finalizes the following revised definition: Electronic health information (EHI) means electronic protected health information as defined in 45 CFR 160.103 to the extent that it would be included in a designated record set as defined in 45 CFR
164.501, regardless of whether the group of records are used or maintained by or for a covered entity as defined in 45 CFR 160.103, but EHI shall not include: (1) Psychotherapy notes as defined in 45 CFR 164.501; or (2) Information compiled in
reasonable anticipation of, or for use in, a civil, criminal, or administrative action or proceeding.
- ONC focuses the definition on ePHI (as defined in the HIPAA Rules) and limits it to the extent that ePHI is included in a designated record set. The reference to the HIPAA ePHI definition also incorporates related HIPAA definitions for protected health
information and electronic media. ONC states that the definition does not specifically include or exclude price information and notes that to the extent ePHI includes price information and is included in a designated record set, that price information
will be considered EHI.
What is information blocking and what are the information blocking exceptions outlined in the rule? How do I apply those exceptions?
We recommend reading the below Toolkit documents from the AMA to get a better understanding of how the information blocking rules and exceptions apply to providers:
Are there penalties for non-compliance?
EHR vendors and HIE/HINs can receive up to $1 million in civil monetary penalties per violation. Penalties and other “disincentives” for physicians and all other health care providers have yet to be determined by the Department of Health and Human Services
(HHS). However, physicians participating in the Promoting Interoperability (PI) Program could see an impact to their Centers for Medicare and Medicaid Services (CMS) Merit-based Incentive Payment System (MIPS) incentives if they are found to be information
blockers. We are working with the AMA to urge HHS to refrain from creating any new physician penalties.
What are the next steps I should be considering to comply with the rule?
We recommend reading the below documents from the AMA to get a better understanding of how to implement this in your practice:
Additional Questions?
Please feel free to reach out to pprc@mms.org or advocacy@mms.org if you have additional questions.
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