Information Blocking Through the Eyes of Health Information Exchanges

Vaishali Patel and Jordan Everson | May 10, 2021

The information blocking regulations at 45 CFR Part 171 began to apply to health care providers, health IT developers of certified health IT, health information exchanges, and health information networks on April 5, 2021, per ONC’s recent interim final rule. That makes now a good time to consider stakeholders’ views about practices that may constitute information blocking, including the extent to which they exist. Our recent study in the Journal of the American Medical Informatics Association reports on a survey of health information exchanges’ (HIEs) perceptions of other stakeholders’ practices related to information blocking. Our results indicate that there is a perception that practices that may constitute information blocking are common and underline the need for further assessment to determine whether they would meet the information blocking definition laid out in the 21st Century Cures Act and further implemented by ONC’s information blocking regulations.

Information blocking, as defined by the statute and regulations, is challenging to measure at a broad scale because it is more than just whether electronic health information (EHI) did not flow “freely.” Instead, it involves a series of elements. It must be determined: whether an individual or entity is covered by the information blocking regulations (“actor”); whether the actor had the requisite knowledge; whether the EHI is within the scope of the definition found in 45 CFR Part 171; whether “the practice” is likely to interfere with, prevent, or materially discourage access, exchange or use of EHI; whether the practice is required by law; and whether the practice meets a specific information blocking exception.

Given that the survey was conducted prior to finalization of the information blocking regulations, it does not address all of the statutory and regulatory criteria. However, by conducting the survey before ONC’s Cures Act Final Rule was finalized, we will be able to examine future trends in perceived prevalence of behaviors that may be associated with information blocking after the rule applies.

Why ask HIEs about their perceptions of information blocking?

HIEs are well positioned to observe these behaviors because their business is tightly tied to facilitating information exchange, and they interact with many health care providers and EHR vendors. To be straightforward for respondents, we asked about “EHR vendors” rather than all “Developers of Certified Health IT” and on “Health delivery systems” rather than “Health care providers.”  While the terms we used are not exactly the same as those adopted in regulations to define “actors” under the law (45 CFR Part 171), we believe respondents’ understanding of the terms we used had significant overlap with the terms used in the regulations. We asked HIEs what proportion of vendors and systems engaged in practices related to information blocking, how frequently they did so, and what types of practices they were observing. For EHR vendors, HIEs were asked to identify instances of unreasonably high prices, restrictive contract language, use of artificial barriers, and refusal to engage in exchange, for instance by refusing to export data at the provider’s request or establish connectivity with other vendors. For health systems, HIEs were asked to identify instances of artificial barriers or refusal to share information.

According to HIEs, EHR Vendors and Health Systems Engage in Information Blocking Practices

Based on HIE observations, practices they perceived to constitute information blocking seem to be more prevalent among EHR vendors than health systems. Fifty-five percent (55%) of HIEs reported that EHR vendors sometimes, often, or routinely engage in practices that they perceive to be information blocking compared to 30% of HIEs reported that health systems sometimes, often, or routinely engage in those practices.

Over half of HIEs reported observing EHR vendors sometimes or often engage in four different practices that may constitute information blocking. Setting prices that HIEs perceived to be unreasonable was the most common practice by EHR vendors. Eighty-two percent (82%) of HIEs reported that they sometimes or often observed practices that might constitute information blocking in the form of high prices. Forty-two (42%) of HIEs reported that they believe vendors often use high prices to limit access, exchange, or use of electronic health information while 40% said they sometimes do.

For health systems, the most prevalent practice reported was health systems refusing to share information. Fifty-six percent (56%) of HIEs said they sometimes or often observe instances of refusal, 15% of HIEs indicated health systems often refuse, and 41% of HIEs indicated health systems sometimes do. Thirty-seven percent (37%) of HIEs also said health systems sometimes or often use artificial barriers to limit access, exchange, or use of electronic health information. The prevalence and variety of practices observed in this study and prior research point to the importance of the information blocking regulations.

Market Dynamics May Influence Information Blocking

We found a high correlation across several practices perceived to be information blocking included on our survey. For instance, when an HIE observed that most or all health systems engaged in practices that may constitute information blocking, they were also more likely to report that vendors often engaged in the same or similar practices and vice versa. Since HIEs serve specific geographic areas, this correlation suggests that there may be areas of the country that are “hot spots” where such practices are common across multiple dimensions and “cool spots” where these practices are less common.

One driver of potential hot spots of practices that may constitute information blocking appears to be competition between EHR vendors. HIEs that operate in regions with higher levels of vendor competition reported higher levels of practices they believe constitute information blocking. But this is likely just one market condition that could be related to information blocking. Understanding other drivers of possible information blocking could help identify opportunities to encourage information sharing through policy or initiatives that would complement the 21st Century Cures Act and ONC’s Cures Act Final Rule.

Looking to the future

These findings highlight the importance of continued assessment of the environment as policies related to information blocking now apply. ONC plans to continue to survey various stakeholders to assess their views on information blocking. Knowing more about what health care providers, patients, developers of certified health IT, app developers, and others are observing regarding the access, exchange, and use of EHI will provide insights on information blocking from a variety of perspectives. In follow-up surveys of HIEs, we hope to see a decrease in reported practices that may constitute information blocking, which may indicate that developers of certified health IT, health care providers and health information networks/exchanges are more readily sharing EHI consistent with the goals of the 21st Century Cures Act and the ONC final rule. Collectively, this work should help us understand where regulations are having an impact and where challenges persist.