Information Blocking Rule: A New Tool to Facilitate Public Health Data Collection
June 14, 2022
The COVID pandemic has brought into sharp focus the crucial nature of data in helping drive decision-making, directing public health interventions, focusing limited resources, and allocating precious grant dollars. The new federal Information Blocking Rule may provide local and state health departments with an additional tool to enhance collection of key public health data and overcome some of the barriers to reporting of data by health care providers and others.
Public health data, now more than ever, is at the heart of public health practice. The COVID pandemic has brought into sharp focus the crucial nature of data in helping drive decision-making, directing public health interventions, focusing limited resources, and allocating precious grant dollars. A new federal rule prohibiting information blocking may provide local and state health departments with an additional tool to enhance collection of key public health data and overcome some of the barriers to reporting of data by health care providers and others.
Section 4004 (the information blocking provision or Information Blocking Rule) of the 21st Century Cures Act (Cures Act) defines information blocking as a practice by a health information technology developer, exchange, or network, or health care provider (collectively “actors”) that “is likely to interfere with, prevent, or materially discourage access, exchange, or use of electronic health information.” Information blocking includes “practices that restrict authorized access, exchange, or use under applicable State or Federal law of such information for treatment and other permitted purposes…” and implementing information technology in ways that unnecessarily inhibit access, exchange or use of electronic health information. The provision provides for penalties for actors who engage in information blocking.
In recent years, information blocking has been recognized as a practice that inhibits access to electronic health information. One study of leaders of electronic health information exchange (HIE) found that 83 percent of respondents reported electronic health record (EHR) vendors routinely or occasionally engaged in information blocking and 59 percent said the same about hospital and health systems. Twenty-two percent of respondents in the same study found hospital and health systems often or routinely “selectively shar[e] patient health information” in order to control “patient flow” and 50 percent of respondents found hospital and health systems often or sometimes use HIPAA to block access to patient records in situations in which HIPAA in fact does not bar the access.
Why Information Blocking Matters to Public Health Practitioners
Depending on applicable law, public health departments collect a wide array of public health data. This may include data on: human immunodeficiency virus (HIV) infections; sexually transmissible infections; hospital discharges; prescription monitoring; children’s blood lead levels; vital records; and immunizations. What’s more, depending on the law of the jurisdiction, public health agencies generally have authority to investigate actual and suspected cases, clusters and outbreaks of reportable infectious disease and may request relevant health records to confirm a diagnosis. Laws authorizing collection of these public health data generally include provisions governing data access and dissemination that protect privacy.
The problem is that both actual and perceived barriers hamper health care providers’ compliance with public health reporting requirements. While some barriers are structural, studies show other barriers include health care providers’ lack of awareness of reporting obligations, lack of certainty over which diseases must be reported, fears about patient privacy, and inadequate penalties for failing to report. These barriers compromise the ability of health departments to collect and analyze the range of data needed to protect the public’s health. Cutting through these barriers presents a challenge for public health practitioners, particularly when provider education does not resolve the problem.
The Office of National Coordinator (ONC)—the federal agency charged with implementing key parts of the Cures Act and addressing instances of information blocking—recently indicated that the Information Blocking Rule has implications for public health, suggesting it may be an additional tool to facilitate public health data collection enforcement.
The ONC has clarified that health care providers and other actors who fail to comply with mandated reporting requirements may violate the Information Blocking Rule, stating:
[w]here a law requires actors to submit [electronic health information] to public health authorities, an actor’s failure to submit [electronic health information] to public health authorities could be considered an interference under the information blocking regulations. For example, many states legally require reporting of certain diseases and conditions to detect outbreaks and reduce the spread of disease. Should an actor that is required to comply with such a law fail to report, the failure could be an interference with access, exchange, or use of [electronic health information] under the information blocking regulations.
This ONC guidance casts the information blocking provision in a relatively new light and provides for more obvious application of the rule in the public health context. The guidance should put the Information Blocking Rule on the radar screen of public health practitioners seeking to enhance compliance with authorized requests for electronic health information. Such public health practitioners should be aware of the enforcement mechanisms within the information blocking provision. The Information Blocking Rule grants authority to the Department of Health and Human Services (HHS) Office of Inspector General (OIG) to investigate practices that could constitute an interference with the access, exchange, or use of electronic health information and, in the case of a claim of information blocking by a health care provider, to refer the health care provider to other federal agencies, such as ONC, the Office for Civil Rights (OCR), and the Federal Trade Commission (FTC), to be subject to appropriate disincentives.
Public Health Law and Policy Application
Encouraging providers to comply with reporting requirements often requires a carrot and stick approach, with a balance of provider education and occasional need to use legal enforcement mechanisms. In those instances in which providers fail to report required data or fail to produce requested electronic health information in the course of a disease investigation in response to an authorized request, public health practitioners at state and local health departments may wish to point out in writing that health care providers who are obligated to provide data, who fail to provide data, may be referred by the public health practitioner to the HHS OIG for potential violation of the Information Blocking Rule. Such written correspondence should also highlight that the HHS OIG has the authority under the rule to refer cases to an appropriate agency to be subject to suitable disincentives under applicable federal law.
This post was written by Stephen Murphy, J.D., Senior Attorney, Network for Public Health Law—Mid-States Region Office.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.