On May 1, modifications to the Medicare Conditions of Participation (“CoPs”) went into effect, requiring certain electronic event notifications for admissions, discharges and transfers (“ADTs”) to and from hospitals, critical access hospitals and psychiatric hospitals. To provide guidance to hospitals and state surveyors, CMS released several FAQs as well as interpretive guidance last week
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When Does a Health Care Provider Wear an HIE/HIN Hat for Purposes of the Info Blocking Rule?
- Under the IBR, an HIN/HIN Actor is one that “determines,” “controls,” or has the “discretion to administer” access, exchange or use of EHI between two or more unaffiliated entities.
- A separate entity is not necessary to trigger the IBR HIN/HIE definition of an Actor.
- A provider could wear two IBR Actor hats: (1) as a
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What Information Must be Made Available on Patient Portals?
- Portals present challenges that many Actors continue to focus on.
- Until October 6, 2022, Actors are only required to respond to requests for EHI with USCDI, but this is only for purpose of IBR.
- Other factors, such as how an Actor “holds out” its portal need to be considered when deciding what should be made
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Information Blocking Compliance — So What Happens on April 5th?
- The 21st Century Cures Act already establishes the penalties that will apply to Actors that engage in prohibited Information Blocking
- ONC will exercise enforcement discretion and not assess penalties until CMP rules are final, however compliance by April 5, 2021 is still required
- ONC already maintains a live webpage and portal through which anyone can report information
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NEW ONC FAQ: Prior Agreements or Contracts CAN Implicate Information Blocking as of April 5th!
- On and after April 5, 2021, any Actor’s agreements, arrangements, or contracts are subject to and may implicate the Information Blocking Rule.
- The Communications Condition of Certification (CCOC) requirements must be revised to remove or void the contractual provision that contravenes the CCOC requirements whenever the contract is next modified for any reason.
- A Business Associate Agreement should generally not
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How to Use the Privacy Exception to Deny an Abuser Access to EHI
- The Privacy Exception allows an Actor deny a request for EHI if a precondition under applicable law has not been met.
- A patient must, at a minimum, be afforded the opportunity to object to any disclosure of EHI to a family member or freind involved in the patient’s care.
- A covered entity may deny a
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Checklist for Info Blocking Compliance
- Your vendor is not “taking care of it.” Compliance with the Information Blocking rule is about more than just the technology.
- Assemble a “task team” to tackle operational decisions that need to be made to comply with Information Blocking.
- Use a checklist to begin “ticking off” boxes to ensure that your organization is moving towards compliance
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Threading the HIPAA Needle through Information Blocking to Block Patient Access when Data is Corrupted
How can an Actor/covered entity provider comply with both the Information Blocking Rule & HIPAA when access to EHI/PHI needs to be denied based on harm that arises from corrupted data?
- Delay access to EHI/PHI instead of denying access completely.
- Have a licensed health care professional confirm the denial of access due to data issues.
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Threading the Needle on Patient Access after Information Blocking Goes into Effect April 5th
The Information Blocking (IB) Rule is intended to work in sync with HIPAA, including the “right of access” granted to patients with regard to their own protected health information (PHI). However, as I continue to analyze how to implement the various standards that overlap between these two regulations, questions about how to thread the needle…
How the Preventing Harm Exception Differs from HIPAA
I believe that the “Preventing Harm Exception” under the Information Blocking Rule is not only the most challenging exception to apply, but also the most difficult to interpret – particularly where some of the standards do not exactly track HIPAA, and other imprecise language has made its interpretation uncertain. In this post, I will attempt…