What to Know for ASCs
As previously mentioned, the 21st Century Cures Act directed the HHS secretary to identify information blocking exceptions—reasonable and necessary activities that would guarantee a provider or developer protection from penalization. In the Final Rule, ONC delineates eight such scenarios that would absolve a provider or developer from penalties. The eight information blocking exceptions are:
1. Preventing Harm Exception
4. Infeasibility Exception
5. Health IT Performance Exception
View ONC's Information Blocking Exceptions document for more information on each exception.
Let’s examine a couple of exceptions to illustrate how they work.
The Privacy Exception asserts that “it will not be information blocking if an actor does not fulfill a request to access, exchange, or use EHI in order to protect an individual’s privacy.” For instance, if an ASC does not fulfill a request to share EHI at the explicit request of an individual, then that ASC will NOT be found to have engaged in information blocking.
Another exception that may apply to ASCs is the Manner Exception. This exception would allow an ASC flexibility in fulfilling a request for EHI if the ASC was unable to provide the EHI in the manner requested. For example, an ASC may encounter a situation where a health system or network requests EHI via a certified EHR module. If the ASC does not have a certified EHR module and therefore cannot fulfill the request, the facility will not automatically be found to have engaged in information blocking. ONC has delineated a stepwise approach for determining an alternative manner, such as transferring EHI via a nationally accredited data transfer standard, or, at the very least, an alternative machine-readable format.
It is important to note that not meeting the conditions of one of the eight exceptions does not automatically constitute information blocking. It only means that the case will be evaluated individually to determine whether penalties are appropriate.