Information Blocking Rule Reminder

On Feb. 24, 2021, the ONC 21^st Century Cures Act became effective, making it illegal to block information from patients and requiring that health care entities provide patients with immediate access to their personal health information.   

The Information Blocking Rule requires the laboratory to release test results to the patient at the same time results are reported to the provider.  

What This Means to Your Patient

If your patient has received laboratory testing services from CompuNet, the patient will have access to results, including pathology results, potentially before you can contact the patient. It is recommended that you discuss with your patients the possibility of having access to results before you will have reviewed them. With this understanding, the patient may determine that it is best to wait until you contact them rather than accessing MyChart or CompuNet’s patient portal, My Labs Now. 

If you would like to review the “No Blocking Rule”, please see the Premier Health memo below regarding the 21^st Century Cures Act Information Blocking Rule, dated February 17, 2021 

*** The following memo is being reissued and updated after the ONC 21 ^st Century Cures Act’s implementation was temporarily delayed due to the COVID-19 pandemic ***

The ONC 21^st Century Cures Act prohibits blocking information from patients and requires that patients have immediate access to electronic health information and can easily exchange information in their medical records. This change was effective Nov. 2, 2020, but then was delayed until Feb. 24, 2021. Organizations can be penalized up to $1 million per violation for failing to comply with this rule, unless such failure falls into one of eight limited exceptions. Enforcement is possible for violations that occur on or after April 5, 2021.          

Background

The law was originally passed in 2016 to help bring new treatments to market more quickly. One provision prohibits “Information Blocking” to help facilitate unfettered access to patient records by other providers and patients themselves. A final rule containing definitions and details of what this entails was released on May 1, 2020. The final rule defines Information Blocking as “a practice that is likely to interfere with access, exchange, or use of electronic health information.” 

What does this mean for Premier Health hospitals, entities, physicians, and clinical teams? >

• Defined parts of the patient record must be immediately available to the patient in real time without any delays, except if they meet very specific requirements.   
• Similarly, we must have transmission processes for other provider entities. 
• Two main changes will occur on Feb. 24, 2021: 
  1. All test results will be released to the patient at the same time they are reported to the provider (preliminary results are not released) unless they meet one of the eight limited exceptions or as otherwise required by state or federal law.   
  2. Most provider, nursing, and other clinical notes will be visible in MyChart when signed.  This includes but may not be limited to ambulatory, acute care, emergency department, physician progress notes, H&P, consult notes and discharge summaries.   

Are there any EXCEPTIONS to the Information Blocking Rule?  

• It will not be information blocking for an actor to not fulfill or otherwise interfere with a request for access, exchange or use of electronic health information (EHI): 
  1. Preventing Patient Harm (most relevant for providers)—if the conduct is necessary and reasonable to prevent harm to a patient or another person IF all of the following conditions are met:   
     • Actor must hold a reasonable belief that the action will substantially reduce a risk of harm AND the practice must be no broader than necessary; AND 
     • Action must satisfy at least one condition from each of: 
       • Type of risk (as determined by practitioner or due to misidentified, mismatched or corrupt data); AND 
       • Type of harm (practitioner determines access would likely harm the patient or another person); AND 
       • Implementation basis (is consistent with Premier Health policy); AND 
     • If based on a practitioner’s determination, the action must be implemented consistent with the patient’s right to request review of an individualized determination of risk of harm. 

        

       *If you believe the exception applies and you can satisfy all three of the conditions above, there will be a box to “uncheck” that will block the release to the patient’s MyChart. The provider MUST thoroughly document in his/her note the specific clinical justification for not releasing the result.  **Emotional distress, by itself, will likely not suffice.       

  2. Privacy — to protect an individual’s privacy, provided certain conditions are met. 
  3. Security — to protect the security of EHI, provided certain conditions are met. 
  4. Infeasibility — if the request is infeasible, provided certain conditions are met. 
  5. Health IT Performance — to take reasonable and necessary measures to make health IT temporarily unavailable or to degrade the health IT’s performance for the benefit of the overall performance of the health IT, provided certain conditions are met. 
  6. Content & Manner — to limit the content of its response to a request to access, exchange, or use EHI or the manner in which it fulfills a request, provided certain conditions are met. 
  7. Fees — to charge fees, including fees that result in a reasonable profit margin, for accessing, exchanging, or using EHI, provided certain conditions are met. 
  8. Licensing — to license interoperability elements for EHI to be accessed, exchanged, or used, provided certain conditions are met. 
     • Patients’ health information requested prior to Feb. 24, 2021, will be released pursuant to the laws, rules and policies in place at the time, and as specifically authorized on the patient’s consent forms. 

We encourage providers to do the following before and after Feb. 24, 2021:  

• Have conversations with your patients so they understand there is a very high likelihood that they will have access to their test results before you will have reviewed them.   
• Communicate your process for follow-up with them, including appropriate methods for asking questions, and how you will be providing your interpretation of the results (follow-up appointment, MyChart message, phone call, etc.)   
• When it comes to your documentation, be sure to consider that the patient will easily be able to read what you have documented.  Remember the “Cardinal Rules for Documentation to Mitigate Risk” when writing your progress notes and avoid unnecessary commentary, such as settling disputes or casting blame on other providers.   
• In some cases, patients may prefer to receive their results from their provider. It is their option to refrain from reviewing results in MyChart until they have had an opportunity to discuss them with you. 
• Consider if you have documentation templates that include contact information not appropriate for the patient. If so, please remove that information from your template. Help with this can be obtained through our Epic support and Technical Education staff, if needed. 

Back to the June 2022 issue of Premier Pulse