If an individual asks an actor to provide a copy of the individual’s electronic health information (EHI) in some form of physical media, such as where the EHI is printed to paper or copied onto a CD or USB drive, could the individual’s request implicate the information blocking regulations and may any fees be charged?

Yes, an individual’s request for a copy of their EHI in some form of physical media, such as where the EHI is printed to paper or copied onto a CD or USB drive, could implicate the information blocking regulations. The definition of information blocking includes any practice (act or omission by an actor, as defined at 45 CFR 171.102) that is not required by law or covered by an exception and that is likely to interfere with, prevent, or materially discourage access, exchange, or use of electronic health information (EHI) (as defined at 45 CFR 171.102). Importantly, however, any fee charged for providing this type of access to EHI that does not meet the Fees Exception (45 CFR 171.302) potentially could be considered information blocking.

We have consistently interpreted the broad definition of information blocking in section 3022(a) of the Public Health Service Act to encompass potentially any fee that is likely to interfere with, prevent, or materially discourage the access, exchange, or use of EHI (84 FR 7521, 85 FR 25880). This would include any fees charged to individuals for copies of their EHI furnished on paper or on electronic media (such as CDs or USB drives). To be covered by the Fees Exception, any fee(s) charged for copies of EHI on electronic media or printed to paper must meet all of its conditions, including that fees(s) are not among the list of excluded fees at 45 CFR 171.302(b).  Of note, one of the exception’s conditions ensures alignment with HIPAA in that any fee prohibited by the HIPAA Privacy Rule for an individual’s right of access (45 CFR 164.524(c)(4)) is not covered by the Fees Exception. (84 FR 7540, 85 FR 25886).