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Information Sharing Toolkit

Provided by the Information Sharing Workgroup

What is information blocking?

The Building Blocks of Information Blocking

A practice is an act or omission by an actor, including responding or failing to respond to a request.
An actor is a health care provider, health IT developer of certified health IT, health information network or health information exchange.
Federal and state law may, in certain instances, require an actor to interfere with access, exchange, or use.  Practices required by law do not constitute information blocking, nor does refusing to engage in practices prohibited by law.
If a practice satisfies an exception, it is not information blocking.  Note, however, that the fact that a practice that does not satisfy an exception does not mean that the practice constitutes information blocking.
A practice is “likely to interfere” if it is likely to prevent, materially discourage, or otherwise inhibit access, exchange, or use of EHI.  Determining whether a practice is likely to interfere requires a case-by-case assessment of the specific facts and circumstances.
For the information blocking rules to be implicated, there must be a relationship between the practice and the need to access, exchange, or use EHI.
The information blocking rules only apply when the information to be accessed, exchanged, or used constitutes EHI.
A developer, HIN or HIE is engaging in information blocking only if the actor knows, or should know, that a practice is likely to interfere with access, exchange, or use of EHI.  The actor must be acting with actual knowledge, reckless disregard or deliberate ignorance.
A provider is engaging in information blocking only if the actor knows that a practice is unreasonable and likely to interfere with access, exchange, or use of EHI. The actor must be acting with actual knowledge.

Overall Process Workflow for Evaluating Requests

Have you received an “actionable request” to access, exchange, or use actual EHI?

Are you restricted by law from responding?

Information blocking is not implicated.

Evaluate the individual facts and circumstances, including whether another exception applies

Did the requestor accept an alternative manner?

Can you reach an agreement with the requestor?

Manner Exception applies.

The Information Blocking Process

The information blocking process is split into four parts which include: 

Part A | Are the information blocking rules implicated?

The request does not trigger obligations under the information blocking rules.

Proceed to Manner Exception

Information Blocking Tips

Not every request implicates the information blocking rules; only requests that could be necessary to access, exchange, or use existing EHI (“actionable requests”). For example, a request to develop new software features or interpretive tools, or a request for non-EHI data like audit logs don’t implicate information blocking.

Consider using and publicizing a standard pathway to receive requests (e.g., an intake form, web portals, dedicated email account). Train your organization to route all requests to that process. A request shouldn’t be deemed actionable unless the requestor has given you enough information to evaluate the request and take action on it.

Part B | Can the actor satisfy the manner exception?

The Manner Exception applies.

Look at the facts and circumstances, consider other exceptions.

Proceed to Licensing and Fees Exceptions

Information Blocking Tips

Use a catalog or menu of your “manner requested“ product offerings, your terms, fees, and conditions for them.

Develop a list or catalog of readily-available alternatives (if feasible, certified HIT or industry standard technology). Take into account the Licensing and/or Fees Exceptions.

An agreement can be inferred. After offering alternatives, actors commonly don’t often hear back from the requestor. Actors should consider adopting a process for deeming requests closed after offering  alternative manners.

Part C | Can the actor satisfy the licensing exception?

Is there a request to license technology?

Does the license agreement include the required elements and exclude prohibited terms?

View Checklist

Does the royalty include the required elements?

View Checklist

Look at the Fees Exception

Evaluate facts and circumstances, including whether another exception may apply.

Information Blocking Tips

Offer a license within 10 business days from receipt of the actionable request, and complete negotiations within 30 business days.

If the actor is licensing technology as an alternative manner, an actor should decide whether the amount charged is a royalty, is a fee, or includes both.

Required Elements for a License

Prohibited Terms for a License

Information Blocking Tips

Actors are not required to apply the same terms for everyone requesting a license.  Actors should consider using standard sets of terms for similar types of requestors.

References

Required Elements for a Royalty

Information Blocking Tips

A royalty charged for a technology the actor has licensed from a standards developing organization that is consistent with such organization’s policies meets the royalty requirements. 1
References

Part D | Can the actor satisfy the fees exception?

Is the actor a health IT developer of certified health IT and charging fees that are inconsistent with one or more condition of certification requirements?

Do the fees meet the other required elements under the exception?

View Checklist

If the actor has otherwise satisfied the Manner Exception, the actor has satisfied one or more information blocking exceptions.

Evaluate facts and circumstances, including whether another exception may apply.

Do the fees include prohibited terms?

View Checklist

If the actor has otherwise satisfied the Manner Exception, the actor has satisfied one or more information blocking exceptions.

Required Elements for Fees

References

Prohibited Terms for Fees

References

Looking for Additional Information?

The information sharing workgroup has a plethora of additional resources regarding information blocking. Visit the link below to access those resources.