What role does a “requestor” play under the alternative manner condition of the Manner Exception?

When an actor believes they can fulfill a request for access, exchange, or use of electronic health information (EHI), they may seek to satisfy the Manner Exception (45 CFR 171.301) to be sure they are not committing information blocking. The Manner Exception states in principle that an actor “must fulfill a request for EHI in any manner requested, unless the actor is technically unable to fulfill the request or cannot reach agreeable terms with the requestor to fulfill the request in the manner requested” (45 CFR 171.301(a)(1), 85 FR 25877). If an actor does not fulfill a request for EHI in any manner requested because the actor is technically unable to fulfill the request or cannot reach agreeable terms with the requestor, the Manner Exception then specifies that an actor must fulfill the request in an alternative manner (45 CFR 171.301(b)).

Under this alternative manner condition of the Manner Exception, the actor must fulfill the request for EHI without unnecessary delay in an alternative manner (45 CFR 171.301(b), 85 FR 25878). The actor must offer alternative manners in a strict priority order, starting with 45 CFR 171.301(b)(1)(i) and only proceeding to the next consecutive paragraph if the actor is technically unable to fulfill the request in the manner identified in the paragraph.

Importantly, a requestor must specify the technology or standards, respectively, of the alternative manners under paragraphs (b)(1)(i) and (ii) or agree to an alternative machine-readable format under paragraph (b)(1(iii). Simply put, if the requestor does not specify technology certified to a standard or standards adopted in part 170 ((b)(1)(i)), or content and transport standards published by certain publishers ((b)(1)(ii)), or agree to an alternative machine-readable format ((b)(1)(iii)), then the actor cannot meet the alternative manner condition of the Manner Exception. An actor is not permitted to presume or dictate the manner in which access, exchange, or use of EHI is fulfilled under the alternative manner condition of the Manner Exception.

If an actor is unable to meet the Manner Exception, the actor may want to consider whether the actor can meet the conditions of another exception. For example, the actor may be able to rely on the Infeasibility Exception. One factor of the infeasible under the circumstances condition of the Infeasibility Exception is “[w]hy the actor was unable to provide access, exchange, or use of electronic health information consistent with the [Manner Exception].” (45 CFR 171.204(a)(5)(i)(F), 85 FR 25867).