American College of Radiology strongly opposes 1 aspect of new HHS info-blocking rule

The American College of Radiology “strongly opposes” aspects of a new rule aimed at easing confusion around policies to prevent providers from blocking the flow of information to patients. 

On Aug. 5, the Health and Human Services Office of the National Coordinator released the proposed rule, amending regulations issued under the 21st Century Cures Act. The rule would add a section to codify a list of specific practices the administration believes would constitute as interfering with information sharing.

In comments submitted Wednesday, ACR expressed concern about this list, the purpose of which it believes is “unclear.” Establishing such examples “would not substantially alter actors’ compliance strategies,” nor would it improve their understanding of HHS’ enforcement strategies. 

“More importantly, the noncomprehensive list of ‘interference’ examples…is likely to be confusing and counterproductive,” ACR CEO Dana Smetherman, MD, MBA, wrote Sept. 25. “Some actors may erroneously perceive this list as a prioritization or limitation of the scope of [Office of Inspector General] investigations (e.g., enforcement discretion).” 

ACR gave two examples of “interference” that it finds problematic. 

• Delay on new access: HHS contends that delaying patient access to new electronic health information—such as diagnostic test results, so that clinicians or other representatives can review it first—would constitute interference. ACR believes these scenarios are unlikely to be viewed as “unreasonable” by most physicians. Often, this interference may be medically necessary for a physician to review, oversee or validate the accuracy of the info, Smetherman wrote. For instance, a delay for review of output from artificial intelligence-based devices, in which “the radiologist’s review is a fundamental and necessary component of safe and effective on-label use.” 
• Medical images: The administration also contends that it would constitute “interference” when requiring that access, exchange or use of any medical images occur by physical copies or media, despite the provider having the capability to do so electronically. ACR believes that this “misunderstands and misrepresents” the instigating factors of physical media-based exchange. Radiology providers generally do not choose physical media over other options, Smetherman wrote. In these scenarios, such copies are typically the only available technological means to meet a patient’s request for diagnostic-quality images. “Rather than focusing on providers, as the…example does, it would be more beneficial for the [Assistant Secretary for Technology Policy-Office of the National Coordinator for Health IT] to provide guidance to device and IT vendors and networks that facilitate, or can facilitate, electronic exchange of diagnostic quality images,” she wrote. 

Meanwhile, the proposal also would revise requirements to ensure that EHR solutions used by referring providers can incorporate links to images. HHS, however, does not propose specific content or exchange standards to correspond with these revisions. Smetherman said the college supports this change. 

“This proposal is generally aligned with the ACR’s longstanding goal—shared broadly by many radiologists, companies and organizations in the radiology provider community—for medical images to be electronically exchanged without use of physical media (known on social media as the “#DitchTheDisk” campaign),” she wrote. 

The administration also is proposing to create a new info-blocking exception for when a provider believes that sharing images or other details could risk exposure to legal action. This provision stems from concerns that providers could be punished for relaying info pertaining to an abortion that could lead to criminal penalties. 

“The ACR supports this exception and recommends finalization,” Smetherman added. “Pursuant to positions established by the ACR Council, the ACR opposes criminalization of the provision of evidence-based medical care within the scope of a given physician/professional’s training, professional judgment and nationally recognized professional practice guidelines.” 

The deadline for submitting comments on the proposal is Oct. 4. Along with ACR, the American Medical Association shared its own feedback Sept. 25. For more on the proposed rule, you can read a breakdown from consulting firm McDermott+ here.