An actor's practice of not fulfilling a request to access, exchange, or use electronic health information due to the infeasibility of the request will not be considered information blocking when the practice meets one of the conditions in paragraph (a) of this section and meets the requirements in paragraph (b) of this section.

(a) Conditions—(1) Uncontrollable events. The actor cannot fulfill the request for access, exchange, or use of electronic health information because of a natural or human-made disaster, public health emergency, public safety incident, war, terrorist attack, civil insurrection, strike or other labor unrest, telecommunication or internet service interruption, or act of military, civil or regulatory authority that in fact negatively impacts the actor's ability to fulfill the request.

(2) Segmentation. The actor cannot fulfill the request for access, exchange, or use of electronic health information because the actor cannot unambiguously segment the requested electronic health information from electronic health information that:

(i) Cannot be made available due to an individual's preference or because the electronic health information cannot be made available by law; or

(ii) May be withheld in accordance with § 171.201.

(3) Third party seeking modification use. The request is to enable use of EHI in order to modify EHI provided that the request for such use is not from a health care provider requesting such use from an actor that is its business associate.

(4) Manner exception exhausted. The actor is unable to fulfill a request for access, exchange, or use of electronic health information because paragraphs (a)(4)(i), (ii), and (iii) of this section are all true; and the actor complied with paragraph (a)(4)(iv) of this section.

(i) The actor could not reach agreement with a requestor in accordance with § 171.301(a) or was technically unable to fulfill a request for electronic health information in the manner requested.

(ii) The actor offered at least two alternative manners in accordance with § 171.301(b), one of which must use either technology certified to standard(s) adopted in part 170 (§ 171.301(b)(1)(i)) or published content and transport standards consistent with § 171.301(b)(1)(ii).

(iii) The actor does not provide the same access, exchange, or use of the requested electronic health information to a substantial number of individuals or entities that are similarly situated to the requester.

(iv) In determining whether a requestor is similarly situated under paragraph (a)(4)(iii), an actor shall not discriminate based on:

(A) Whether the requestor is an individual as defined in § 171.202(a)(2)

(B) The health care provider type and size; and

(C) Whether the requestor is a competitor of the actor or whether providing such access, exchange, or use, would facilitate competition with the actor.

(5) Infeasible under the circumstances. (i) The actor demonstrates, prior to responding to the request pursuant to paragraph (b) of this section, through a contemporaneous written record or other documentation, its consistent and non-discriminatory consideration of the following factors that led to its determination that complying with the request would be infeasible under the circumstances:

(A) The type of electronic health information and the purposes for which it may be needed;

(B) The cost to the actor of complying with the request in the manner requested;

(C) The financial and technical resources available to the actor;

(D) Whether the actor's practice is non-discriminatory and the actor provides the same access, exchange, or use of electronic health information to its companies or to its customers, suppliers, partners, and other persons with whom it has a business relationship;

(E) Whether the actor owns or has control over a predominant technology, platform, health information exchange, or health information network through which electronic health information is accessed or exchanged; and

(F) Why the actor was unable to provide access, exchange, or use of electronic health information consistent with the exception in § 171.301.

(ii) In determining whether the circumstances were infeasible under paragraph (a)(3)(i) of this section, it shall not be considered whether the manner requested would have:

(A) Facilitated competition with the actor; or

(B) Prevented the actor from charging a fee or resulted in a reduced fee.

(b) Responding to requests. If an actor does not fulfill a request for access, exchange, or use of electronic health information for any of the reasons provided in paragraph (a) of this section, the actor must, within ten business days of receipt of the request, provide to the requestor in writing the reason(s) why the request is infeasible.