APMA News - September/October 2021 - 26

Coverage Corner
By Kevin West, Esq.
An Attorney's Perspective on Podiatry and the 21st
Century Cures Act
What is the 21st Century Cures Act, and what does
it mean for health-care providers?
The 21st Century Cures Act ( " Cures Act " )1
requires that
health-care providers, including podiatrists, grant patients
(or their representatives) access without charge to specified
parts of the patient's electronic health information
(EHI).2
Specifically, there are eight types of records for
which access must be allowed:
* consultation notes
* discharge summaries
* history and physical
* imaging reports
* lab reports
* pathology reports
* procedure notes
* progress notes
Failure to provide access constitutes illegal " information
blocking, " for which providers may be penalized. There are,
however, certain exceptions in which blocking access will not
be considered illegal information blocking. This article addresses
various issues relating to the requirement to provide
access to patient health information of minors and when
blocking access is permitted.
Does the Cures Act apply to individuals of all ages
and if so, does it require that the patient and their
responsible party receive the patient's health information
when the patient is a minor?
Yes, the Cures Act applies to patients of all ages.3
The objective
of this act is to offer all patients access to their EHI in any
format that is secure and easy to understand.4
Typically, when
a patient is a minor, HIPAA and most state laws permit the
patient's parent or legal guardian access to the minor's medical
records.5
Accordingly, under the Cures Act, parents must
be allowed access to the EHI of their minor children, unless
an exception applies.
The Cures Act includes eight broad exceptions that permit
a health-care provider to " block " access to EHI. If any of the
following eight exceptions apply, the health-care provider is
not required to provide access to the EHI:
* preventing harm exception
* privacy exception
* security exception
* infeasibility exception
26 APMA News September/October 2021
* health IT performance exception
* licensing exception
* fees exception
* content and manner exception
The two potential exceptions that could apply to minor patient
information are the preventing harm exception or the
privacy exception. The preventing harm exception allows a
provider to block access to patient information if they reasonably
believe that doing so is necessary to prevent harm to the
patient or another person.6
In podiatry, this exception could
apply in a child-abuse situation where the practitioner is noting
physical signs of abuse in the medical record.
Moreover, under the privacy exception, a provider may decline
access to EHI if one of four of the following enumerated
sub-exceptions apply:7
* a precondition is not satisfied, such as if federal or state law
requires a patient's consent or authorization prior to disclosing
the EHI8
* the developer of certified health IT is not covered by HIPAA
* denial of an individual's request for their EHI
* respecting an individual's request not to share information
These sub-exceptions will only rarely apply to podiatrists,
particularly where a minor patient is involved.
In sum, the Cures Act does apply to all patients. As such, the
EHI of patients who are minors must be provided to a minor's
parent or legal representative, unless an exception applies.
APMA News - September/October 2021

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