With this next post in Gravely Group’s series on the Information Blocking Exceptions from the ONC Final Rule, we shift from the exceptions that deal with not fulfilling requests for access, exchange, or use of electronic health information (EHI) to the exceptions that deal with how requests to access, exchange, or use EHI are fulfilled. We begin this second category with probably the most interesting of the eight exceptions: the Content and Manner Exception.
The Content and Manner Exception considers when an Actor’s Practice of limiting the content of its response to a request or the manner in which it fulfills a request for access, exchange, or use of EHI will not be considered information blocking.
- The EHI that is identified by the data elements represented in the United States Core Data for Interoperability (USCDI) standard until May 2, 2022;
- All EHI on and after May 2, 2022.
EHI DEFINED: The definition of “electronic health information” or “EHI” under the Information Blocking Regulations is generally consistent with how ePHI is defined under HIPAA, except that the information does not need to have been created, and need not be maintained, by or for a Covered Entity. The definition also specifically excludes psychotherapy notes (as defined under HIPAA) and information that is compiled in reasonable anticipation of, or for use in, a civil, criminal, or administrative action or proceeding.
- The Actor is technically unable to fulfill the request in the manner requested; or
- The Actor cannot reach agreeable terms with the requestor for fulfillment of the request.
However, the analysis does not stop here. Remember: Content & Manner is one of the exceptions that applies to how an Actor fulfills a request for access, exchange, or use of EHI, not whether the Actor fulfills the request.
If the Actor does not fulfill a request for EHI in the manner requested because the Actor is either technically unable to do so or because the Actor is unable to reach agreeable terms with the requestor, the Actor must nonetheless fulfill the request in an alternative manner. The Actor must fulfill the request without unnecessary delay, and the alternative manner for fulfilling the request must be according to the priority below. An Actor may only proceed down the following list if the Actor is technically unable to fulfill the request in the preceding manner listed:
- Using technology certified under ONC’s Health IT Certification Program standards that is specified by the requestor;
- Using content and transport standards specified by the requestor and published by:
- The federal government; or
- A standards-developing organization accredited by the American National Standards Institute;
- Using an alternative machine-readable format, including the means to interpret the EHI, agreed upon with the requestor.
In addition, if the Actor does not fulfill the request for access, exchange, or use of EHI in the manner requested, then:
- Any fees charged for fulfilling the request in an alternative manner must satisfy the Fees Exception; and
- Any license of interoperability elements granted by the Actor in relation to the request must satisfy the Licensing Exception.*