The Executive Suite: Why blocking patient access to their records can cost your practice

Refusing to share records and data with patients in a timely manner can result in an accusation of information blocking, which could someday soon lead to a fine.

Federal health care agencies have been trying to halt information blocking, and have been warning provider and other organizations that enforcement action is coming soon for organizations with data blocking complaints lodged against them.

During the HIMSS22 Global Health Conference in Orlando, health and human services Secretary Xavier Becerra talked about the complaints HHS has received regarding organizations barring access to patient data. More than 75% of the complaints about information being blocked have involved health care providers, Becerra said.

One patient wrote about awaiting to hear about a biopsy and being told the results are available, but the patient couldn’t get the results yet, because the doctor was out of town, Becerra recounted.

“Closing this enforcement gap is an HHS priority,” Becerra said.

Becerra didn’t specify what penalties may be coming for information blockers. But he said HHS will have more to share on enforcement measures later this year. When it comes to providers blocking information, the health secretary makes the decisions on penalties, he said.

What is information blocking?

Information blocking is action by someone (a medical practice, hospital, vendor, etc.) to interfere with access, exchange or use of health data, according to Arthur W. Harvey III, senior vice president and chief information officer for Boston Medical Health System, during a HIMSS22 presentation

Essentially: If a patient wants access to their health data, you have to give it to them. There are exceptions (eight of them, including preventing harm, privacy, infeasibility) and the records don’t have to be provided for free.

Organizations have many reasons for blocking information. Deven McGraw, chief regulatory officer for Ciitizen, explains that many are reluctant to share patient data due to privacy concerns, and because they view data as a business asset.
How many complaints are out there?

The 21st Century Cures Act standardized the process for the public to report claims of possible information blocking, which is a practice by a health IT developer that is likely to interfere with the access, exchange, or use of electronic health information.

The Office of the National Coordinator has created a standardized process for the public to report claims of possible information blocking via a portal, which launched April 5, 2021. Since that time, 274 cases of possible information blocking have been reported.

Of these claims, 174 were filed by patients, 42 by attorneys on behalf of patients, and 32 by health providers, with the rest coming from IT developers or third parties. Of those suspected of information blocking, 211 are health care providers and 42 are IT developers. Provider is defined by ONC as a hospital, health facility, or physician, among others.
Information blocking examples

ONC has provided examples of practices that may constitute information block:

Fees are imposed that make exchanging electronic health information cost prohibitive.
An organization’s policies or contractual arrangements prevent sharing or limit how information is shared with patients or their healthcare providers.
The HIPAA Privacy Rule is inappropriately cited as a reason not to share information.
Healthcare providers or IT vendors limit or discourage sharing information with other providers or with users of other IT systems.
Technology is designed or implemented in non-standard ways that lessen the ability to exchange and use information with other IT systems, services, or applications that follow nationally recognized standards.
Patients or healthcare providers become “locked in” to a particular technology or healthcare network because their electronic health information is not portable.