Sec. 4. Information blocking

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Subtitle C of title XXX of the Public Health Service Act ( 42 U.S.C. 300jj–51 et seq. ) is amended by adding at the end the following: The term information blocking means— with respect to a health information technology developer, exchange, or network, business, technical, or organizational practices that— except as required by law or specified by the Secretary, interferes with, prevents, or materially discourages access, exchange, or use of electronic health information; and the developer, exchange, or network knows, or should know, are likely to interfere with or prevent or materially discourage the access, exchange, or use of electronic health information; and with respect to a health care provider, the person or entity knowingly and unreasonably restricts electronic health information exchange for patient care or other priorities as determined appropriate by the Secretary.

The Secretary shall, through rulemaking— identify reasonable and necessary activities that do not constitute information blocking for purposes of paragraph (1)(A); and identify actions that meet the definition of information blocking with respect to health care providers for purposes of paragraph (1)(B). The Inspector General of the Department of Health and Human Services may investigate any claim that— a health information technology developer of, or other entity offering certified health information technology— submits a false attestation made under section 3001(c)(5)(D); or engaged in information blocking with respect to the use of such health information technology by a health care provider, unless for a legitimate purpose specified by the Secretary; a health care provider engaged in information blocking with respect to access or exchange of certified health information technology, unless for a legitimate purpose specified by the Secretary; and a health information network or exchange provider engaged in information blocking with respect to the access, exchange, or use of such certified health information technology, unless for a legitimate purpose specified by the Secretary.

For purposes of this section, the Office of the Inspector General shall have jurisdiction with respect to exchanges and networks, as well as any developer or entity offering health information technology for certification under a program or programs kept or recognized by the National Coordinator under section 3001(c)(5). The National Coordinator shall notify developers of health information technology as appropriate regarding the jurisdiction of the Inspector General under this paragraph.

With respect to a health information technology developer, exchange, or network, a person or entity determined by the Inspector General to have committed information blocking as described in subparagraph

(A)or

(C)of paragraph

(1)shall be subject to a civil monetary penalty in an amount determined, through notice-and-comment rulemaking, by the Secretary which may take into account factors such as the extent and duration of the information blocking and the number of patients and providers potentially affected. With respect to health care providers, any person or entity determined by the Inspector General to have committed information blocking as described in subparagraph

(B)of paragraph

(1)shall be subject to appropriate incentives and disincentives using authorities under applicable Federal law, as determined appropriate by the Secretary through notice and comment rulemaking. The provisions of section 1128A of the Social Security Act (other than subsections

(a)and (b)) shall apply to a civil money penalty applied under this subsection in the same manner as such provisions apply to a civil money penalty or proceeding under section 1128A(a). Notwithstanding section 3302 of title 31, United States Code, or any other provision of law affecting the crediting of collections, the Inspector General of the Department of Health and Human Services may receive and retain for current use any amounts recovered under subparagraphs

(A)and (C). In addition to amounts otherwise available to the Inspector General, funds received by the Inspector General under this paragraph shall be deposited, as an offsetting collection, to the credit of any appropriation available for purposes of carrying out this subsection and shall be available without fiscal year limitation and without further appropriation. The Office of the Inspector General, if such Office determines that a simple consultation regarding the health privacy and security rules promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996 ( 42 U.S.C. 1320d–2 note) will resolve the claim at issue, may refer instances of information blocking to the Office for Civil Rights of the Department of Health and Human Services for resolution. If a health information technology developer makes information available based on a good faith reliance on consultations with the Office for Civil Rights of the Department of Health and Human Services with respect to such information, the developer shall not be liable for such disclosure. In this section, the term trusted exchange with respect to certified health information technology means that the certified health information technology has the technical capability to enable secure health information exchange between users and multiple certified health information technology systems. The National Coordinator, in consultation with the Office for Civil Rights of the Department of Health and Human Services, shall issue guidance on common legal, governance, and security barriers that prevent the trusted exchange of electronic health information. The National Coordinator and the Office for Civil Rights of the Department of Health and Human Services may refer to the Inspector General instances or patterns of refusal to exchange health information with an individual or entity using certified health information technology that is technically capable of trusted exchange and under conditions when exchange is legally permissible. Not later than 1 year after the date of enactment of the Improving Health Information Technology Act , the HIT Standards Committee shall begin consideration of issues related to trusted exchange. .

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42 USC 300jj–51
42 USC 1320d–2

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Sec. 4

Information blocking

Cite42 USC 300jj–51

Cite42 USC 1320d–2

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