21st Century Cures Act: Avoiding information blocking for treatment purposes

Erin MacLean (emaclean@fandmpc.com, emaclean@compliagent.com) is Attorney/Managing Shareholder at Freeman & MacLean PC, located in Helena, MT, and Regional Compliance Director at Compliagent LLC, located in Los Angeles, CA.

Healthcare providers have an obligation under the Health Insurance Portability and Accountability Act of 1996 (HIPAA)[1] to protect the confidentiality of protected health information (PHI), but this obligation does not grant them ownership or exclusive control over the PHI. Further, when a provider requests PHI for treatment purposes and that request is improperly delayed or denied, the withholding provider may be liable for information blocking under the 21st Century Cures Act (Cures Act)[2] unless the information is otherwise protected by law, such as in the case of substance use disorder patient records under 42 C.F.R. § 2. This article addresses the evolution of access and exchange of PHI for treatment purposes with the passage of the Cures Act in 2016 and the Office of the National Coordinator for Health Information Technology’s (ONC) issuance of its Cures Act final rule in March of 2020.

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