On September 17, 2020, the Office of Management and Budget received an Interim Final Rule for review from the Office of the National Coordinator for Health IT (ONC) entitled “Information Blocking and the ONC Health IT Certification Program: Extension of Compliance Dates and Timeframes in Response to the COVID-19 Public Health Emergency.” While the title suggests that health care providers and other regulated actors may have more time to come into compliance with ONC’s May 2020 information blocking final rule, details about potential delays remain scarce and health care providers would be well served to continue apace with compliance efforts, even if the original November 2, 2020 information blocking compliance date ultimately shifts.
This is particularly true for hospitals and health systems that might also function in the capacity of a health information technology (IT) developer of certified health IT (Certified Health IT Developer) or health information network or health information exchange (HIN/HIE), because Certified Health IT Developers and HIN/HIEs face potential civil monetary penalties (CMPs) from the HHS Office of Inspector General (OIG)—as opposed to the yet undefined “appropriate disincentives” health care providers face. OIG is currently engaged in its own rulemaking to finalize regulations implementing its information blocking CMP authorities. In its proposed rule, OIG stated that it would not enforce CMPs for violations of the information blocking regulations that occur after November 2, 2020, but before OIG finalizes the CMPs. It is not clear how, if at all, any change to the ONC’s information blocking compliance date would impact the timing of OIG’s final rule (which is not yet at OMB for review) and, ultimately, timing of enforcement actions. Given such uncertainty, continued effort to identify and address areas of potential non-compliance with ONC’s final rule is advisable, particularly for actors that face potential CMPs of up to $1M per violation. For more information on the OIG proposed rule, see our On the Subject.
To help health care providers that might also function as Certified Health IT Developers or HIN/HIEs identify potential areas of consideration and focus, we have developed the below resources. Please reach out to your McDermott lawyer or one of the contacts listed here to discuss your information blocking preparations.