21st Century Cures Act May Help Drive Innovation in Case Management

November 18th, 2024

By Melinda Young

One of the less well-known aspects of the 21st Century Cures Act is how it forces all electronic health records (EHRs) to communicate health data between health systems in standardized language. This could help revolutionize the continuum of care and the way healthcare entities communicate with each other.

For example, one health system's EHR may ask patients about whether they smoke or have engaged in a smoking cessation program. Another would have questions on the same topic but would use the word tobacco.

"They couldn't talk with each other because there wasn't a way to standardize those fields," says Jean Ross, BSN, MHA, the chief executive officer and co-founder of Primary Record in Fishers, IN. Ross spoke about health information laws and care transitions at the 2024 Case Management Society of America Conference in Providence, RI.

"There are a lot of groups that have electronic health records," Ross notes. "Part of that is giving patients access to information in an electronic format."

But the purpose behind having EHRs also is to improve communication during transitions of care. Rather than rely on each patient to carry in a bag or list of their medications, the records from the patient's primary care provider and specialists could be shared with the hospitals and skilled nursing facilities. Unfortunately, there still is no seamless transfer of information between one health care entity and another, unless they're part of the same system.

"What is a patient's recourse if their data isn't shared electronically?" Ross asks.

The 21st Century Cures Act has an answer: People can file an information blocking claim. Patients, nurses, physicians, and others can file a claim with the federal government when they witness a patient's information not being shared between healthcare entities, Ross says.

Case managers are instrumental in information exchange between healthcare entities, and the Cures Act's prohibition of information blocking may help them in their work.

"Information blocking is the practice that interferes with, prevents, or materially discourages access to get — for example — an updated medication list to that facility," Ross says. "A care manager could call a specialist and not get information about the patient's condition to relay that information to the primary care provider or to start home care or hospice care."

The Cures Act prohibits information blocking, whether it's via phone or electronically transferred, she adds. According to the American Medical Association (AMA), information blocking can affect healthcare providers, patients, and community stakeholders in a variety of ways:¹

• Electronic health vendors place restrictive and unfair contractual limitations on physicians' use and exchange of medical information.¹
• Excessive fees are charged to create HER interfaces or connections with other health information technology.¹
• Methods of implementing EHRs, using technical or non-standard methods, block the access, exchange, or use of medical information.¹

When the 21st Century Cures Act was enacted in December 2016, it included provisions to promote health information interoperability. It also prohibits information blocking by health information networks, health information exchanges, health information technology developers, and healthcare providers, the AMA says.¹

The Office of the National Coordinator for Health Information Technology issued a final rule published in the Federal Register on May 1, 2020, explaining what information blocking is and how patients, healthcare professionals, and others can report it.²

Under section 4002 of the Cures Act, health information technology (IT) developers are not permitted to take any action that constitutes information blocking. This includes preventing healthcare providers and others from obtaining information, with eight exceptions, which mostly are intended to prevent harm and protect patient safety.^2,3

When a case manager, patient, or someone else is impacted by information blocking, they can file a claim with the Office of the National Coordinator for Health Information Technology, Ross says.

"They process it and figure out if that party is guilty, and there could be a million dollar penalty," she explains. "So now there is a way to raise a flag when data are not being shared and they are supposed to be shared." It is still early and there has not been a lawsuit under the information blocking provision yet, she adds.

According to the Office of the National Coordinator for Health Information Technology, as of early May 2024, there have been more than 1,000 information blocking portal submissions and more than 900 possible claims of information blocking.⁴

The majority of the complaints were made by patients or someone acting on the patient's behalf. About 150 claims were made by healthcare providers. Others were made by attorneys, health IT developers, and health information exchanges.⁴ Most of the claims alleged that healthcare providers or health IT developers were blocking information.⁴

Information blocking is not in conflict with HIPAA rules because HIPAA is about patient information that is exchanged without protecting the patient's privacy or knowledge, Ross notes.

"HIPAA is in place so if the patient goes into an office and leaves that office, the office can't send information everywhere," she explains. "It has to protect the patient's privacy and ability to control it."

But when a patient accesses their own data and applies to receive the information, that is not under the purview of HIPAA, she adds.

Patients sometimes assume that if their medical information is put into a third-party mobile app then it must be unsafe because it is not protected by HIPAA. But this is not always the case as there are some additional policies that protect that information, Ross says.

The key is for patients and case managers to find out which apps can help patients achieve their goals of connecting their health information with providers at the time they need this to happen but to also protect their information from breaches.

"It's the patient's choice to put their health information into [a mobile health app] and have it organized on their behalf," Ross says. "It's regulated by the Federal Trade Commission."

References

1. American Medical Association. What is information blocking? https://bit.ly/44yASq0
2. 21st Century Cures Act: Interoperability, Information Blocking, and the ONC Health IT Certification Program. Fed Register. https://www.federalregister.gov/documents/2020/05/01/2020-07419/21st-century-cures-act-interoperability-information-blocking-and-the-onc-health-it-certification
3. Office of the National Coordinator for Health Information Technology. Information Blocking. https://www.healthit.gov/topic/information-blocking
4. Office of the National Coordinator for Health Information Technology. Information Blocking Claims: By the Numbers, Health IT Quick-Stat #59. https://www.healthit.gov/data/quickstats/information-blocking-claims-numbers