On April 5, 2021, the information blocking rule of the federal 21st Century Cures Act dictated that eight categories of clinical notes contained within an electronic health record (EHR) must be immediately available to patients through a secure online portal. 

Why is this change important? 

The official definition of information blocking from HealthIT.gov states that it is:

 “a practice by an “actor” that is likely to interfere with the access, exchange, or use of electronic health information (EHI), except as required by law or specified in an information blocking exception.” 

Sometimes called the “open notes” movement, information blocking encompasses any practice that interferes with the patient’s right to access their information. It is considered an infringement of patient rights, and, like HIPAA violations – can be punished by hefty fines. 

The Cures Act defines a potential penalty of up to $1 million per violation for IT developers and HIE/HINs. Physicians and other healthcare providers are referred to CMS or the Office of Civil Rights for a HIPAA violation or fraudulent attestation to receive payment. In any case, the penalties are meant to be a serious deterrent. 

Getting the terminology straight.

Before we can correctly understand the nuances of The Cures Act and information blocking, we first must understand the common terms.

What is an “actor”? 

Unfortunately, we aren’t discussing your favorite movie personality in this context. Here, an actor is defined as one of four types of entities: 

• Health care providers
• Health IT developers
• Health information exchanges (HIE)
• Health information networks (HIN) 

All of these types of actors are subject to the Information Blocking rules and regulations. 

What is Electronic Health Information (EHI)?

This terminology refers to electronic protected health information that is contained within a designated record set. EHI is defined by HIPAA, and this data is protected regardless of whether the records are used or maintained by a covered entity. 

What does immediately available mean? 

The term “Immediately available” means “without delay” and through a secure online portal. Individuals or healthcare providers may not block, or delay patients’ access to, any information that is included in 8 specific categories of reports in EHR. 

What Information Can’t be Blocked?

The following types of notes must be made immediately available to patients via an electronic portal. Most entities now have mobile-friendly platforms that enable these types of reports to be available as soon as they are created and signed. 

The 8 mandatory categories of clinical notes to be made immediately available:

1. Consultation notes
2. Discharge summary notes
3. History and physicals
4. Imaging narratives
5. Lab report narratives
6. Pathology report narratives
7. Procedure notes
8. Progress notes

The patient’s right to access their records was solidified under HIPAA 27 years ago, in 1996. With the addition of faster and more portable technology, access has changed tremendously since that time. The Cures Act legislation is aimed at making this access easier and virtually unrestricted for patients. 

Are there exceptions to the Information Blocking rules?

There are a total of eight exceptions that fall into two categories. 

Category 1: Not fulfilling requests to access, exchange, or use EHI

1. Preventing harm exception. 
2. Privacy exception. 
3. Security exception.
4. Infeasibility Exception
5. Health IT performance exception. 

Category 2: Procedures for fulfilling requests to access, exchange, or use EHI

1. Content and manner exception. It is not considered information blocking for an actor to limit the content or how it fulfills a request to access, exchange, or use EHI.
2. Fees exception. It is not information blocking to charge reasonable fees for accessing, exchanging, or using EHI. 
3. Licensing exception. It is not information blocking for an actor to license interoperability elements that are necessary for EHI to be accessed. 

How Do I Diagnose Information Blocking?

All of these rules and exceptions can seem rather daunting; however, it doesn’t have to be. When faced with a particular situation, the individual circumstances must be considered. It is helpful to systematically analyze the situation by answering the following questions: 

• Is this an actor? Does the entity meet the definition of any of the four types of actors?
• Does the actor have control over the EHI? 
• Is this an impermissible interference? Does it fall under one of the exceptions?
• Does the actor have intent?

If these four “tests” are met with a yes, then an instance of information blocking is likely. 

How Common is Information Blocking? 

Although a relatively new regulation, studies are already being done to determine the scope of the problem among the four categories of actors. A study from the Journal of the American Medical Informatics Association(JAMIA) indicates that anecdotal and empirical data determine that it is a common problem. Fifty-five percent of HIEs indicated that at least some EHR vendors engaged in information blocking, and 14% indicated that most or all vendors did so. However, only 24% of respondents to the study indicated that at least some healthy systems engaged in information blocking and 6% stated that most did so. 

The most common types of information blocking were:

• Price – 42%
• Artificial barriers – 23%
• Contract language and refusal – 11%

Some of the systemic problems that were identified that contributed to information blocking were silos of information across large health systems. This often happened in organizations that acquired new entities with legacy EHR systems. 

RecordQuest’s Take on Information Blocking

As part of the healthcare ecosystem, RecordQuest is dedicated to staying compliant and informed of any changes when it comes to protecting patient rights and the privacy of information. That said, RecordQuest, as a release of information (ROI) provider, is not considered an “actor” by definition of the Cures Act. RecordQuest is considered a business associate, which means that all HIPAA rules apply, just as they would for the healthcare organizations RecordQuest provides services for. 

Since RecordQuest is not an actor and does not maintain an organization’s EHI nor provide electronic access to EHI via an online portal, RecordQuest is not subject to information-blocking rules under the Cures Act. Despite this designation, RecordQuest still abides by the fee conditions and only charges fees based on reasonable costs, and those fees are applied consistently and uniformly across all record requests. 

RecordQuest makes it our business to facilitate patient access to health information and does not engage in information blocking. As a valuable partner to healthcare organizations across the country, we protect patient privacy while fulfilling requests as quickly, yet compliantly as possible. RecordQuest handles the details so that healthcare organizations can allocate resources where they are most needed – providing excellent healthcare in their respective communities.