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Extension of the Information Blocking Applicability Date

on Friday, 6 November 2020 in Health Law Alert: Erin E. Busch, Editor

Application of the Information Blocking final rule has been delayed until April 5, 2021.

While the industry has been aware of a possible delay since late September 2020, the federal government provided no hint as to how long the relief would last. And there was no lack of suspense. The new interim final rule was announced on October 29, 2020, less than two business days before the original applicability date or November 2, 2020. However, it was worth the wait, as the industry was provided an extra five months before the provisions of the Information Blocking rule apply.

This extension also applies to the definition of electronic health information (“EHI”) under the “Content and Manner” exception. Recall that for the first 18 months, the EHI that must be made available is limited to only that EHI within the USCDI data elements. Thereafter, all EHI must be made available. Because the overall applicability date was extended, the initial limited EHI that must be provided has also been extended. The applicability date for the expansive definition of EHI is now October 6, 2022.

In the commentary to the interim final rule delaying the applicability of the rule, the U.S. Department of Health and Human Services (“HHS”) considered the ongoing public health emergency in its decision to delay required compliance. The Information Blocking rule’s approximate five month extension is the shortest of the many extensions to rules promulgated from the CARES Act. HHS noted that the reason for the shorter extension is twofold. First, the public health emergency must be balanced against the goal of making EHI accessible. Next, because it does not “explicitly require” actors to adopt new technology, HHS had less concern about the need to divert technological resources during the public health emergency. In the real world, however, process and/or system updates or changes are likely needed in order to comply with the rule. While such changes may be easier than wholesale adoption of new technology, they can take some amount of work effort and training.

Those actors that have already begun implementing process or system changes to comply with the Information Blocking rule can continue the hard work. For those who have not yet begun the process, you have been granted last minute reprieve until next spring.

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