SEPT. 2, 2020 – As the November 2nd compliance date approaches, healthcare providers and others are struggling to come into compliance with new information blocking regulations from the U.S. Department of Health and Human Services, which are intended to make it easier to access, exchange, and use electronic health information (EHI).
"These new regulations turn traditional privacy laws on their head and creep into every operational facet of the organization," said Adam Greene, a partner in the Washington, D.C., office of Davis Wright Tremaine LLP and a nationally recognized leader in the healthcare privacy field. "As we examined the new rules closely with our clients, we recognized the need to provide a toolkit that could convert these complex regulations into a structure that organizations could implement quickly. We're pleased to make this resource available with the compliance date now two months away."
Under the new rules, healthcare providers and other entities are subject to penalties (as yet to be determined) if they interfere with the access, exchange, or use of EHI. Eight exceptions apply, including compliance with privacy laws, but healthcare providers must document a regulatory exception for every instance where they interfere with the exchange of the EHI they maintain or control.
"So, for example, when a doctor delays the release of test results because she does not believe the patient will understand them without a discussion; or when an employee ignores a request from a competitor for patient information as part of a research project; or when a contract includes restrictions on how patient information may be further used and disclosed—each practice is potentially information blocking and must be documented as falling under an exception," said Ingrid Brydolf, co-chair of the healthcare practice at Davis Wright Tremaine.
Davis Wright Tremaine's Information Blocking Toolkit
In response to client demand for assistance with implementing the regulations, Davis Wright Tremaine created its Information Blocking Toolkit. The Toolkit includes:
- An overview of the information blocking regulations.
- A template to help in designing a policy prohibiting information blocking.
- A tool to identify practices that may involve information blocking.
- A tool to analyze each practice under the information blocking regulations.
- The statute, proposed and final regulations, and regulatory commentary.
"Simplifying our clients' most complex challenges is at the heart of what we do at Davis Wright Tremaine," said Greene, who led the effort to develop the Toolkit. "The more we delved into the regulations, the more we realized the Herculean task of identifying and analyzing each information blocking practice. We believe the Toolkit will make compliance far more manageable and will deliver significant value to legal counsel, compliance officers, and privacy officers at healthcare providers of all kinds."
"Development of this Toolkit required learning the regulation inside and out," said Michaela Andrawis, an associate in the firm's Los Angeles office. "We worked closely with our clients to make sure our guidance was practical and fit their real-world operational needs."
Maximizing Value for Clients
Davis Wright Tremaine is offering the Toolkit at a flat fee of $7,000, a fraction of what it cost to create. "Under the old pricing model, a law firm would charge the first client for all of the work, and subsequent clients would reap the benefits," said Brian Fanning, the firm's Director of Practice Economics. "This Toolkit is an example of how Davis Wright Tremaine is looking for new opportunities to maximize value and minimize cost across all of its clients."
Availability of the Toolkit and Upcoming Webinar
Organizations that are interested in the Davis Wright Tremaine Information Blocking Toolkit should contact Adam Greene. Because the Toolkit involves legal advice, entities will need to enter into an engagement letter with Davis Wright Tremaine, which can be limited in scope to the Toolkit.
Greene and Andrawis will be presenting a free webinar on Tues. September 15, about the new regulations and how they "change everything about managing patient information."
About Davis Wright Tremaine
Davis Wright Tremaine LLP is a national, full-service law firm with more than 550 lawyers. For more information, visit www.dwt.com.