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TEFCA participants liable for federal information blocking rule
New FAQs clarify that penalties could apply for restricting TEFCA freedom of choice.
In July, the Assistant Secretary for Technology Policy released a federal FAQ warning that TEFCA participants who interfere with Qualified Health Information Network choice risk violating the federal information blocking rule. This guidance applies to both vendors and healthcare organizations. For providers, the consequences of an information blocking violation may include steep Medicare payment disincentives tied to compliance programs.
Freedom of QHIN choice
Health systems have the freedom to choose whether to participate in TEFCA and which QHIN they want to connect through — regardless of their EHR provider. "QHINs that have a connection to developers cannot force customers to opt in to their QHIN. That would violate information blocking," said Steve Gravely, healthcare legal advisor. Gravely is a longtime legal architect of health information exchange in the U.S. — serving as principal author of the Data Use and Reciprocal Support Agreement and advising federal workgroups shaping the TEFCA Common Agreement.
"There are a number of designated QHINs that are connected to EMR developers," Gravely said. "That creates the temptation to try and lean on your EMR customers to choose your QHIN."
When asked if this clarification changed Epic's strategy to get 100% of their hospitals live on TEFCA by the end of the year, Rob Klootwyk, director of interoperability at the EHR provider, said, "We encourage all providers, including Epic customers, to participate in TEFCA regardless of the QHIN they select."
Sub-organization TEFCA participation cautions
The rule applies to health systems supporting TEFCA access for affiliated groups, particularly when those groups aren't legally integrated into the larger organization.
"[A health system] probably doesn't have the right to make that decision on behalf of a connected entity. It can provide the asset with the opportunity. But that asset may say, 'Yeah, I want to move to TEFCA [via another QHIN],'" said Gravely.
Gravely recommended documenting that free choice was offered to separate legal entities, but noted that this doesn't apply in cases where the parent organization can legally sign for a sub-organization. "If [a health system] has the legal authority to bind an organization, then they don't need to paper the file with every single one of them agreeing," he said.
Patient access could become a regulatory hotspot
Health systems are also required to avoid information blocking when connecting patients to TEFCA through Individual Access Services — a space that's likely to see significant growth with the patient access market forecast to reach $4.16 billion dollars by 2032. IAS could represent a substantial portion of that growth as patients look to avoid juggling multiple portals.
"IAS is going to be one of the areas where we see a lot of information blocking activity," Gravely predicted. "Patients have the ability to choose any IAS provider they want. It doesn't have to be the same QHIN as their provider."
When navigating IAS enrollment, healthcare organizations should maintain clear documentation, especially if they have to deny a request or connection. "Whenever you're going to deny a request from a patient or patient representative, it's vital that you document fully why you're making that denial — and what alternatives you provided," Gravely said.
As TEFCA participation grows, healthcare organizations need to assess both their technical and legal readiness. "TEFCA presents a wonderful opportunity for health care providers to share information. Patients deserve that," Gravely said. "An organization should carefully consider that anything it does to inhibit the free exchange of EHI is potentially an information blocking violation — and make those decisions very, very cautiously."
Elizabeth Stricker, BSN, RN, comes from a nursing and healthcare leadership background, and covers health technology and leadership trends for B2B audiences.
