Are contractual fees for the export of electronic health information (EHI) using technology that is not certified to 45 CFR 170.315(b)(10) enforceable if the fees were agreed to prior to the applicability date of the information blocking provision?

Yes, but only to the extent that the fees for the EHI export comply with the “Fees Exception” (45 CFR 171.302). For example, if the fees to export or convert data from the technology were not agreed to in writing at the time the technology was acquired, then the “Fees Exception” would not be available and such fees could implicate the information blocking definition unless another exception applies (45 CFR 171.302(b)(4)).

Note that if the EHI export would be performed using health IT certified under the ONC Health IT Certification Program (45 CFR Part 170) to the “EHI Export” certification criterion (45 CFR 170.315(b)(10)), a fee that is charged to perform such export for purposes of switching health IT or to provide patients their electronic health information (45 CFR 171.302(b)(3)) would not qualify for the “Fees Exception”.