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ONC may soon get additional authority to define information blocking

A request in the President’s 2023 budget may give the ONC more authority to tackle information blocking under the Cures Act.
By admin
Jun 16, 2022, 8:00 AM

A provision tucked into the last page of the 2023 budget request for the Office of the National Coordinator (ONC) may give the Department of Health and Human Services (HHS) the power to give concrete answers about what constitutes information blocking in specific situations. 

If approved in the 2023 federal budget, this new authority would launch the industry forward toward an enforcement phase of the information blocking provisions included in the 21st Century Cures Act of 2016.   

Under the Cures Act, health IT developers, health information exchange networks and certain other “actors” proven to be intentionally engaging in improper information blocking are subject to civil penalties of up to $1 million. Healthcare providers may be given other penalties or disincentives for willingly preventing the appropriate flow of patient information.


Related story: Can the ONC balance market freedom and regulatory action in the quest for interoperability?


In February of 2022, the ONC released the first data on information blocking claims submitted since April of 2021. Of the 393 submissions, 364 had potential to be cases of information blocking. The majority of claims were submitted by patients against their healthcare providers. 

However, the ONC, which functions as part of HHS, has not had the regulatory authority to definitely determine whether an entity has acted in bad faith or whether the event qualifies as an exception to the rules. 

“The requested new authority would give HHS the ability to issue a binding advisory opinion to advise whether, in HHS’ view, a specific practice would constitute information blocking, including whether an exception would or would not be met given the facts and circumstances,” explained Deputy National Coordinator Steve Posnack, MS, MHS, in a new HealthITBuzz blog post.   

“After five plus years implementing the Cures Act along with over two years of answering regulatory implementation questions and receiving stakeholder feedback, we believe that being able to issue binding advisory opinions for the information blocking regulations would be a substantial added benefit to the industry at large.” 

If the advisory opinion goes in the actor’s favor, that actor would be protected from penalties or enforcement actions, the budget request states, as long as the actor was telling a truthful story to HHS. 

The ONC believes that real-world data on instances of information blocking will help to inform future compliance efforts and best practices for information sharing across the broader industry.   

Giving HHS this authority would certainly ramp up the pressure on health IT developers and healthcare providers to reexamine their information sharing practices, the accuracy of their HIPAA knowledge, and their mechanisms for ensuring patients have control over how their personal information is used. 

While the budget proposals for fiscal year 2023 are still subject to change before making their way through Congress and to the President’s desk, Posnack encourages healthcare organizations to read through the proposal and start to think about how the changes may affect their information exchange activities.

 


Jennifer Bresnick is a journalist and freelance content creator with a decade of experience in the health IT industry. Her work has focused on leveraging innovative technology tools to create value, improve health equity, and achieve the promises of the learning health system.


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