The Biden administration’s proposed information-blocking rules that would give patients and physicians more control over health records without worrying about administrative—and even criminal charges—are enthusiastically supported by the AMA.
Parts of the proposals, however, could use further refinement.
The AMA commended the Office of the National Coordinator for Health IT for proposing to enhance protection to patients’ health information and for clarifying when physicians and others would not be considered information blockers if they withhold access, exchange or use of electronic health information to protect patients’ privacy.
In a 30-page comment letter on the proposed rule regarding patient engagement, information sharing and public health interoperability, AMA Executive Vice President and CEO James L. Madara, MD, noted that, in the aftermath of the Dobbs v. Jackson Women’s Health Organization U.S. Supreme Court decision, reproductive health data is increasingly being weaponized by state officials and others.
“States are targeting individuals who receive or facilitate access to reproductive health care, often identifying them through medical records requests,” Dr. Madara wrote in a letter (PDF) to Micky Tripathi, PhD, MPP, the national coordinator for health IT and Health and Human Services assistant secretary for technology policy.
“There are no exceptions specifically designed to address concerns about the legal risks (e.g., investigations, court actions, or liability) that could arise from the access, exchange or use of specific” electronic health information, Dr. Madara added. “The AMA has been advocating for a clear, flexible information-blocking exception that would allow actors to withhold reproductive health information to protect patients and physicians.”
Dr. Madara called the proposed rule’s exception “a crucial step in resolving these issues,” and noted that it provides physicians with greater clarity that their decisions to withhold specific electronic health information would not be considered information blocking.
The information-blocking prohibition was included in the 21st Century Cures Act that was passed in 2016 and took effect in 2021.
Information-blocking resources (PDF) are in included in the AMA Patient Access Playbook.
Accommodating patient preferences
The AMA supports the proposed requestor preference exception which gives patients more control over when and how they receive lab or diagnostic test results, while protecting physicians from information blocking penalties when they honor those requests.
The AMA warned that requiring these preferences in writing, and other stipulations, could have unintended consequences. It noted also that some EHRs lack the capability of distinguishing between test results a patient wants immediately and those that they want to learn from their physician.
In recommending that the request to delay test results could also be made verbally, Dr. Madara wrote: “Physicians should be trusted to use their professional judgment, verbal communications, and patient relationships to accommodate preferences.”
The letter also raises concerns with a proposal that requests should be made “without any improper encouragement or inducement.” The AMA describes this provision as having “ambiguous and subjective phrasing” and calls for its removal.
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Speeding prior authorizations
A proposal to require that EHRs support standardized automated processes for prior authorization was applauded by the AMA, but further refinements are needed.
For physicians to realize the benefits of electronic prior authorization, “payers must be required to use certified electronic PA [prior authorization] technology,” the letter says. “Absent this ‘technology handshake,’ physicians cannot be guaranteed their EHRs will communicate with payers in a standardized and effective way.”
It also calls for requiring electronic prescribing and real-time prescription benefit technology in EHRs.
“Increasing physician access to these high-value functionalities will address well-known transparency issues and administrative burdens related to drug prescribing and prior authorization,” Dr. Madara writes.
“This lack of prescription formulary transparency at the point of prescribing leads to hassles for both physicians and pharmacists, as patients too often face unpleasant surprises at the pharmacy counter when their medication requires prior authorization, is not covered by their plan, or comes with a high co-pay,” he added.
Costly IT upgrades
The letter notes that the AMA “largely supports” these technological upgrades to facilitate the exchange of medical information between patients, physicians and payers.
But it adds that “physicians shoulder the brunt of health IT costs” and expresses concern that health IT developers will impose substantial fees for these upgrades.
“With each federally mandated transition to a new EHR version … health IT developers find ways to incrementally charge physicians for each update, upgrade and enhancement,” Dr. Madara wrote. “While physicians understand the necessity for health IT developers to maintain profitability, the unexpected fees have become excessive.”
System upgrades typically cost between $10,000 and $50,000. Customization and training staff to use added features can push costs above $100,000.
“The AMA anticipates that physicians will once again be forced to upgrade, purchase, and use new EHR features without guarantees that payers will support standardized application programming interfaces,” Dr. Madara wrote.
He urged the Office of the National Coordinator “to identify and leverage policies that mitigate certified health IT developer fees.”
Dr. Madara also reminded the national coordinator that developers must publish all terms, conditions and fees, and clearly describe them in detailed, plain language. He urged Assistant Secretary Tripathi to use “all available disincentives” to reduce inflated EHR costs.
Physicians can find a two-part explanation of the basics of information blocking (PDF) to help them understand what information blocking is, when information can be withheld and how they can comply with information-blocking regulations (PDF).
