On February 11, 2019, the Centers for Medicare & Medicaid Services (CMS) and the Office of the National Coordinator for Health Information Technology (ONC) released complementary proposed rules to promote the sharing of health information, increase patient access to their electronic health information (EHI) and restrict information blocking.

The CMS Proposed Rule seeks to make patient information more easily transferrable by requiring that payers, including Medicare Advantage Plans, Medicaid, Children’s Health Insurance Programs and health insurance plans that participate in the federal exchanges, utilize standardized, open application programming interfaces (APIs) to make information available to beneficiaries and enrollees. Under the proposed rule, patients would be given digital access to their EHI through these APIs at no additional cost. Additionally, CMS is proposing to revise the Medicare and Medicaid Conditions of Participation (CoPs) to require hospitals to send electronic patient event notifications to other hospitals or community providers identified by the patient when a patient is admitted, discharged or transferred.

The ONC Proposed Rule updates the existing 2015 Edition Health IT Certification Criteria to require health information technology systems to be able to send and receive EHI through the use of APIs and to be able to export a patient’s EHI to a location designated by the patient. In addition, the proposed rule implements certain information blocking provisions of the 21stCentury Cures Act. The proposed rule clarifies what constitutes improper information blocking by identifying seven situations in which a healthcare provider may interfere with the access, exchange or use of EHI without engaging in information blocking. Provided that certain conditions are met, these situations include:

• Practices to prevent harm to a patient or another person

• Practices to protect the privacy of an individual’s EHI

• Practices that promote the security of EHI

• Recovering reasonable costs incurred to provide access, exchange or use of EHI

• Receiving requests in which the use or manner of transfer of EHI is not feasible

• Licensing interoperability elements on reasonable and non-discriminatory terms

• Practices that are necessary to maintain and improve the overall performance of the health IT system

CMS and ONC will accept comments on the proposed rules until early April of this year.

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