Robert Latz

The second phase of the information blocking rule came into play Thursday (Oct. 6), and it affects EVERY healthcare provider, including those of us in post-acute care settings. 

The main change between Wednesday and Thursday is the definition of electronic health information (EHI). This means any practice that is likely to interfere with the access, exchange or use of this expanded data set might result in future penalties. 

During the past few months, there has been a significant increase in discussion around this rule. In fact, several groups have encouraged a one-year delay in its implementation date. However, the Office of the National Coordinator for Health Information Technology (ONC) said “No delay” even after listening to legitimate concerns of many providers, including those of us in the post-acute sector. So how can we prepare now? 

First and foremost, understand these new requirements … and prepare for discussions with employees, physicians and others, including attorneys. 

Second, review your policies and procedures. In particular, look at the policy that identifies your “Designated Record Set” (DRS). This is very important in light of ONC comments during the past few months. In addition, review your procedure for handling information requests. Is there anything that could be perceived as “likely to interfere with access, exchange, or use of electronic health information”?

Third, know the eight exceptions to providing information. When appropriate, use these when not able to meet a request for information. Document for each instance of use. For example, if we get a request to provide all electronic information available for a given resident for the past five years, pause and consider the request. This might well fall outside of what is necessary to meet the information blocking rule. Or, maybe we do not have the technical capability to “collect” information that was not in the EHR years ago. Or, the information might be stored outside of our EHR, such as in the pharmacy or therapy EHR. In these instances, use one of the exceptions, such as the “Infeasibility Exception” or the “Content and Manner Exception” and document the reason for using this exception at this time. (i.e. “My EHR does not currently include this information. We are providing for review the information that is currently available.”)

Finally, there have been comments stating that this law does not apply to nursing homes because we did not receive funding from HITECH. Some individuals have shared this message from physicians and even members of the IT departments at some nursing homes. There have also been comments about attorneys now being able to request “everything” we have stored electronically. These comments are wrong. This information blocking rule DOES apply to all of us (every healthcare provider) AND based on the communications from the ONC, the definition of EHI is limited to our designated record set. 

To summarize for clarification: 

Yes, LTPAC providers are included within this law. We are specifically “called out” under the definition of a healthcare provider within the 21st Century Cures Act, which “created” this rule. In short, the act states, “Health care provider has the same meaning as ‘health care provider’ in 42 U.S.C. 300jj,” which states:

  • “The term ‘‘health care provider’’ includes a hospital, skilled nursing facility, nursing facility, home health entity or other long term care facility …” 
  • Yes, LTPAC is included as an “Actor” within the information blocking rule

As noted, the definition of EHI changed on Oct. 6, 2022. There was an expansion of the data set to be provided upon request and without unnecessary delay. In short, instead of a data set limited to the items within USCDI V1, we now must be ready to share a larger data set. 

  • Initially, this was thought to mean “all” data or information maintained electronically. HOWEVER, the ONC has better defined the definition of EHI. In short, this is limited to what the provider has identified as its designated record set. 
  • If we have no policy that identifies our designated record set, then one could argue we need to provide all EHI. IMPORTANT: Please make sure you have a policy outlining your designated record set and make sure this aligns with the HIPAA requirements

What do I need to do right now?

  • Review your policy related to your designated record set. Review your procedure for documentation requests and how these are provided.
  • Consider attending the next ONC Office Hours. Register here.
  • Read this Sep 30, 2022, ONC Blog. 
  • Read this Dec 20, 2021 ONC Blog. 
  • Review this diagram.  

Robert “Bob” Latz, PT, DPT, CHCIO, is the only physical therapist with the Healthcare CIO Certification from CHIME. He is on the NASL board and is a member of the LTPAC HIT Collaborative, the HIMSS LTPAC Committee, the CIO Consortium, and the 7th Committee of the Moving Forward Coalition (IT Adoption). He is also the Chief Information Officer for Trinity Rehabilitation Services, a provider of contracted therapy services in post-acute care settings.  

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.