On October 29, 2024, the US Department of Health and Human Services (HHS) Assistant Secretary for Technology Policy (ASTP) released a fact sheet titled “Information Blocking Reminders Related to API Technology.” The fact sheet reminds developers of application programming interfaces (APIs) certified under the ASTP’s Health Information Technology (IT) Certification Program and their health care provider customers of practices that constitute information blocking under ASTP’s information blocking regulations and information blocking condition of certification applicable to certified health IT developers.
The fact sheet is noteworthy because it follows ASTP’s recent blog post expressing concern about reports that certified API developers are potentially violating Certification Program requirements and engaging in information blocking. ASTP also recently strengthened its feedback channels by adding a section specifically for API-linked complaints and inquiries to the Health IT Feedback and Inquiry Portal. It appears increasingly likely that initial investigations and enforcement of the information blocking prohibition by the HHS Office of Inspector General will focus on practices that may interfere with access, exchange, or use of electronic health information (EHI) through certified API technology. For more information about the ASTP blog post, see McDermott’s On the Subject. For more information about how to prepare for enforcement of the information blocking regulations, view McDermott’s webinar titled “Information Blocking: Defense of Cures Act Investigations and Enforcement.”
The fact sheet focuses on three categories of API-related practices that could be information blocking under ASTP’s information blocking regulations and Certification Program condition of certification:
The fact sheet does not address circumstances under which any of the above practices of certified API developers may meet an information blocking exception (established for reasonable practices that interfere with access, exchange, or use of EHI). Regulated actors should consider whether exceptions apply to individual circumstances.
For information about steps that certified API developers and health care providers should take to avoid information blocking, see McDermott’s On the Subject regarding the recent ASTP blog post. If you would like to evaluate your certified API compliance, contact Kristen O’Brien, Daniel F. Gottlieb (McDermott Will & Emery – Partner), James A. Cannatti III (McDermott Will & Emery – Partner), Mark W. Pearlstein (McDermott Will & Emery – Partner), or your regular McDermott+ consultant or McDermott lawyer.
