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EHI Under The Information Blocking Rule Set To Expand – Healthcare



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The 21st Century Cures Act Information Blocking Rule, codified
at 45 CFR Part 171, is intended to enhance access to, exchange or
use of electronic health information (EHI), and generally prohibits
“actors” from knowingly interfering with such access,
exchange or use, except as required by law or specified in an
information blocking exception. An “actor” is defined as
a healthcare provider, health information technology (IT) developer
of certified health IT or health information exchange (HIE)/health
information network (HIN). Presently, the scope of EHI subject to
the Information Blocking Rule is limited to the data elements
listed in the United States Core Data for Interoperability (USCDI
v1) data classes. Such data includes, but is not limited to,
patient demographics, assessment and plan of treatment, clinical
notes, health concerns, laboratory tests and results, medications
and procedures.

Beginning Oct. 6, 2022, EHI covered under the Information
Blocking Rule will expand beyond the USCDI v1 to all electronic
protected health information (ePHI) to the extent that such
information would be included in a designated record set,
regardless of whether the records are used, or maintained by, or
for a covered entity as defined by the Health Insurance Portability
and Accountability Act (HIPAA). Thus, ePHI generally used,
maintained, stored, created and disclosed by covered entities and
business associates under HIPAA will now be subject to the
information blocking prohibitions. Such information will include
the following electronic records: medical, billing, enrollment,
payment, claims adjudication, case or medical management, and any
other records used, in whole or in part, to make decisions about
individuals. Information that is not considered EHI for purposes of
the Information Blocking Rule include psychotherapy notes;
information compiled in reasonable anticipation of, or for use in,
a civil, criminal or administrative action or proceeding;
employment records; education records; records regarding a person
who has been deceased for more than 50 years; and de-identified
data.

As the scope of the Information Blocking Rule is set to expand,
it will be important for healthcare providers, health IT developers
of certified health IT and HIEs/HINs to ensure that they are not
engaging in practices that may inhibit the appropriate exchange,
access and use of EHI. In so doing, it should be noted that there
are two different knowledge standards for actors to be at risk of
enforcement action. Healthcare providers meet the knowledge
standard if they know the practice is unreasonable and is likely to
interfere with the access, exchange or use of EHI. Health IT
developers of certified health IT and HIEs/HINs meet the knowledge
standard if they know, or should know, that a practice is likely to
interfere with the access, exchange or use of EHI. A process for
evaluating EHI requests and ensuring employees are informed about
the Rule and its exception should facilitate compliance for all
actors.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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