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, 8 tweets, 3 min read Read on Twitter

An interesting wrinkle of #CuresAct

Adhering to contractual requirements is *not* one of the 7 exceptions to information blocking.

Tagging the smartest health policy lawyers I know:

@HealthPrivacy @JodiDaniel @SavageLucia

(Joy Pritts has no Twitter handle?)

Historically, when BAA terms or other contractual terms conflicted with rights possible under #HIPAA, BAA terms have been deemed to hold.

E.g., famously, even though a clearinghouse is a HIPAA CE & has all the rights and obligations of a CE...

...Clearinghouses *also* act as BAs and receive data under a BAA.

Other #HealthIT entities are pure BAs but are also deemed #HealthIT by Cures and this NPRM

Cures presumes information sharing for permitted purposes & calls information blocking practices that inhibit such sharing.

So what happens when obligations under Cures conflict with BAA or other contractual terms?

To keep this simple, when a *patient* requests patient access rights of an HIE or a Clearinghouse, but the BAA by which data were received allows only specific actions, which do not include patient access the Actor has a choice between:

(a) Denying the request in accordance with the BAA but in contravention of Cures & enabling regulation, & being subject to information blocking penalties OR
(b) Responding to the request, supporting Cures, but potentially violating contractual obligations

It could be argued that Congress preempts private contractual law here -- that the plain intent of Congress that the nation's interest in exchange, access & use for EHI is so compelling that when private contracts conflict, the anti-infoblocking interest rules.

But this has never been adjudicated, Congress didn't explicitly preempt, and the rulemaking is silent on this issue *except* through not contemplating contractual adherence as one of the allowed exceptions.

It's a puzzle.

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