ONC Proposes Additional Information Blocking Ban Exceptions

In Senate testimony for the Health, Labor and Pensions Committee, Donald Rucker, MD, national coordinator for health information technology, proposed additional exceptions to the information blocking provisions of the 21st Century Cures Act and recent proposed rules.

In February, the Office of the National Coordinator for Health IT (ONC) and the Centers for Medicare and Medicaid Services issued joint proposed rules directed at enhancing the interoperability of electronic health information (EHI) and increasing patient access to health information. Both rules address “information blocking” practices as defined in the 21st Century Cures Act. In the hearing on May 7, Rucker proposed several exceptions to the ban.

“An action would not be treated as information blocking if it satisfies one or more of these seven exceptions,” Rucker stated in written testimony. “The first three exceptions extend to certain activities that are reasonable and necessary to prevent harm to patients and others; promote the privacy of EHI; and promote the security of EHI. We believe that without these exceptions, it would erode trust and undermine efforts to provide access and facilitate the exchange and use of EHI for important purposes.”

He also said ONC is seeking to allow exceptions to the information blocking ban proposed by ONC for certain activities that are reasonable and necessary to prevent harm to patients and others and to promote the privacy and security of PHI.

“Third, we propose an exception that would permit the licensing of interoperability elements on reasonable and nondiscriminatory terms. Contractual and intellectual property rights are frequently used to extract rents for access to EHI or to prevent competition from developers of interoperable technologies and services. Such practices frustrate interoperability and stifle competition and innovation. In many scenarios, however, it is generally appropriate to license intellectual property on reasonable and non-discriminatory terms to support access, exchange, and use of EHI,” Rucker stated.

At the same hearing, Kate Goodrich, MD, chief medical officer and director at CMS, said the agency is proposing a rule on patient access and interoperability and patient access that would require payers affected by the rule to share health claims and other information electronically with their enrollees by 2020, according to HIT Infrastructure.

ONC and CMS have extended the comment period on their proposed rules from May 3 to June 3.

Mary Butler is associate editor at Journal of AHIMA.

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