Thread by @amalec

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Verily this shall be an Account of the Seven Virtuous Exceptions to the Sin of Information Blocking.

For there are Seven. Not Six. Not Eight. Five is right out.

#CuresNPRM

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The First Virtuous Exception to the Sin of Information Blocking is:

Preventing Harm Including:
(a)(1) Corrupt/inaccurate data
(a)(2) Misidentified patient
(a)(3) Life & Safety

All policies need to be fair, and minimally targeted to prevent harm

1 (commentary)/

Being a Commentary on the First Virtuous Exception.

(a)(1) Seems like an excuse to slow/delay.

(a)(2) seems like a hole you could drive a truck through, yeah? If I don't have 100% confidence in my own patient matching (and who does), I can bail?

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The Second Virtuous Exception to the Sin of Information Blocking is:

Privacy including:
(b) Precondition not satisfied.
(c) Non-HIPAA IT
(d) 45 CFR 164.524(a)(1), (2), and (3) (exceptions to HIPAA Access)
(e) Individual preference

2 (commentary/

Being a Commentary on the Second Virtuous Exception

"Oh I can't share this b/c HIPAA and or State Law" -- now, there's lots of guiderails around (b) (other preconditions), but it's going to be hard to adjudicate.

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The Third Virtuous Exception to the Sin of Information Blocking is:

Security.

Which shall be Just and Virtuous and secondary to Risk Assessment and/or Best Practices

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The Fourth Virtuous Exception to the Sin of Information Blocking is:

Recovering Costs.

Which shall be Fair and Reasonable and Non-Discriminatory and Related to Actual Costs (not, e.g. benefit to requestor).
(more)

4 (more)/

It shall not be Virtuous to attribute Costs based on Intangible Assets, or Costs based on YOUR OWN DAMN FAULT MESSING UP DESIGN OR IMPLEMENTATION

4 (commentary/

Being a Commentary on the Fourth Virtuous Exception:

Wow, this is going to be hard, yeah? Is amortization of a hard capital asset a depreciation of an intangible asset? Can I attribute part of the cost of purchasing LARGE EHR to fees?

🤔🤷‍♂️

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The Fifth Virtuous Exception to the Sin of Information Blocking is:

Infeasible.

Being a Substantial Burden not including Fee Capture or Competitive Burden and is only Virtuous if accompanied by Timely Response & Reasonable Alternative

5 (commentary)/

This is the Scotty Defense ("the engines canna take this Cap'n") and what constitutes Infeasibility will need to be adjudicated.

Oddly, this may reduce the incentive to increase access?

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The Sixth Virtuous Exception to the Sin of Information Blocking is:

Licensing on FRAND Basis:

For Innovation is Good but only if FRAND licensed.

6 (commentary)/

Being a Commentary on the Sixth Virtuous Exception:

This is a new technology exception. If I come up with a better way of enabling, or doing interoperability, I can charge for it but only on a FRAND basis.
(more)

6 (commentary - more)/

Theoretically this allows for people to invent a new mousetrap & allow for allocating fees between direct costs and licensing fees.

OTOH, this is likely to drive disputes as to what is innovation & what is cost-basis activities...

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The Seventh Virtuous Exception to the Sin of Information Blocking is:

Performance.

For it shall be Virtuous to take your Site down for Maintenance

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Thus Endeth the Recitation of the Seven Virtuous Exceptions.