Is a claim of information blocking predicated on a request for access, exchange, or use of electronic health information (EHI)? In other words, does someone always have to ask an actor for EHI before the actor’s practice could violate the information blocking definition?

No. Facts and circumstances will determine whether the information blocking regulations are implicated. Information blocking is defined, in relevant part, as a practice that is likely to interfere with, prevent, or materially discourage the access, exchange, or use of EHI (see 45 CFR 171.103; and 45 CFR 171.102 for the definition of “interfere with”).

A “practice” is further defined as an “act or omission” (45 CFR 171.102). As such, any act or omission, whether or not in response to a request for access, exchange, or use of EHI, could implicate the information blocking regulation if the act or omission interferes with, prevents, or materially discourages the access, exchange, or use of EHI. For example, as specified in section 3022(a)(2)(C) of the Public Health Service Act, added by the 21^st Century Cures Act, the practice of implementing health information technology in ways that are likely to restrict access, exchange, or use of EHI with respect to exporting complete information sets or transitioning between health IT systems could be considered information blocking. Similarly, the practice of including a contract provision that restricts access, exchange, or use of EHI could, under certain circumstances, implicate the information blocking regulations (see 85 FR 25812 for further discussion of contracts that may implicate the information blocking regulations). Further, omissions, including, but not limited to the following, could similarly implicate the information blocking regulations under certain circumstances: failure to exchange EHI; failure to make EHI available for use; and not complying with another law that requires access, exchange, or use of EHI.