The HIPAA Privacy and Security Rules focused on the confidentiality, integrity, and availability of PHI.
In an effort to promote consumer-driven healthcare and encourage competition among HIT vendors, 21st Century Cures Act (Cures Act) further emphasizes the importance of the ease of access and exchange of Electronic Protected Health information (EPHI) for the benefit of both patients and providers.
At first glance, it may seem that HIPAA and the Cures Act are contradictory, as HIPAA was built on the premise of permitting certain disclosures of PHI and the Cures Act actively requiring disclosures of PHI. The Cures Act not only requires disclosures, but it even more explicitly prohibits “Information Blocking” which is defined as conduct that is "likely to interfere with, prevent, or materially discourage access, exchange, or use of electronic health information."
Patients already had rights to access their data under HIPAA, and the Cures Act has only enhanced this concept by mandating flexibility in how and with whom patients share their EPHI, making the regulations aligned in the concept of patient access and sharing.
The Cures Act is focused on the increase and ease of data flow for the benefit of patients and providers, violating the Information Blocking provisions of the Act may place an actor at risk for potential investigations and steep penalties.
However, the Information Blocking provisions should not be interpreted to mean that unvetted and unconstrained access to data is required.
The Cures Act does allow for eight specific exceptions for activities or actions that otherwise might be considered information blocking, one of which is the privacy exception. At least one of several conditions must be met to rely on the privacy exception, and of those conditions, one is that a precondition has not been satisfied. A precondition in this context could mean proper consents and authorization as required by HIPAA or state law. In other words, the permissibility still must be evaluated, and data sharing is not required when it is prohibited under state or federal privacy law.
The Cures Act also has direct parallel to the HIPAA Security Rule in the fact that it specifically identifies a practice that interferes with the exchange of data that directly relates to safeguarding the confidentiality, integrity and availability of ePHI as one of the exceptions to information blocking.
This likely presents little change for Actors (Healthcare Providers, Developers of Certified Health IT, and HIEs/HINs) that are already accustomed to evaluating the security posture of their business associates.
In addition to the intersections between HIPAA and the Cures Act listed above, the U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR) released a proposed rule on December 10, 2020 in an effort to modernize HIPAA so it better aligns with the current healthcare landscape. Like the Cures Act, several of the proposed changes focus on speed and ease related to patients’ rights of access, and clarifies and extends provider access for the purposes of care coordination and mental health services.
In this continuously changing regulatory environment, MEDHOST is committed to help you meet these HIPAA and Cures Act requirements while providing you with solutions that save time and resources, reduce cost, enhance revenue, and create better experiences for the communities you serve.
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