§ 170.404 Application Programming Interfaces

Clarifications:

• The Conditions and Maintenance of Certification requirements only apply to practices of Certified API Developers with respect to the capabilities included in § 170.315(g)(7) through (10).

Clarifications:

• The data required and that must be supported to demonstrate conformance to the final § 170.315(g)(10) certification criterion (including all of its associated standards and implementation specifications) constitutes “all data elements of a patient’s electronic health record to the extent permissible under applicable privacy laws.”

Clarifications:

• This provision of the Condition of Certification requirements does not prohibit additional content or limit the type of content a Certified API Developer may include in its terms and conditions. A Certified API Developer would be permitted to include consumer protections in its terms and conditions documentation.
• As part of the requirements at § 170.315(g)(10)(v)(A)(1)(iii), Certified Health IT Developers must publish the method(s) by which their Health IT Modules support the secure issuance of an initial refresh token to native applications according to the technical documentation requirements at § 170.315(g)(10)(viii) and transparency conditions at § 170.404(a)(2). 

Clarifications:

• Certified API Developers and API Users have the ability to collaborate and form relationships, so long as these relationships do not conflict with any of the provisions of the ONC Cures Act Final Rule or other applicable federal and state laws and regulations.
• While the permitted fees set the boundaries for the fees Certified API Developers are permitted to charge and to whom those permitted fees can be charged, they do not prohibit who may pay the Certified API Developer’s permitted fee. In other words, these conditions limit the party from which a Certified API Developer may require payment, but they do not speak to who may pay the fee.
• Fees charged for “value-added services” can arise between an API Information Source and Certified API Developer or API User.
• Fees charged must be based on objective and verifiable criteria that are uniformly applied to all similarly situated API Information Sources and API users. The requirement of objective and verifiable criteria to determine the application of fees to “similarly situated” API Information Sources and API Users is meant to prevent one customer or a specific group of customers to whom the certified API technology is supplied or for whom it is supported from bearing an unreasonably high cost compared to other customers, which could lead to “special effort” for accessing and using APIs (85 FR 25753).
• Discounted fees, or other fee calculation methodologies, used for the licensing or selling of certified API technology are not prohibited under the ONC Health IT Certification Program so long as they result in fees that meet all the requirements of 45 CFR 170.404(a)(3) in the context of the ONC Health IT Certification Program.
• Non-exhaustive examples of fees for services that Certified API Developers would be prohibited from charging:
  • Any fee for access to the documentation that a Certified API Developer is required to publish or make available under this Condition of Certification requirement.
  • Any fee for access to other types of documentation or information that a software developer may reasonably require to make effective use of certified API technology for any legally permissible purpose.
  • Any fee in connection with any services that would be essential to a developer or other person’s ability to develop and commercially distribute production-ready applications that use certified API technology. These services could include, for example, access to “test environments” and other resources that an application developer would need to efficiently design and develop apps. The services could also include access to distribution channels if they are necessary to deploy production-ready software and to production resources, such as the information needed to connect to certified API technology (e.g., service base URLs) or the ability to dynamically register with an authorization server.
• Fees for requirements beyond what a Certified API Developer considers necessary to successfully deploy applications in production are considered supplemental to the development, testing, and deployment of software applications that interact with certified API technology, and can be classified as permitted fees for value-added services as finalized in § 170.404(a)(3)(iv).
• The API Condition and Maintenance of Certification covers a narrower scope of potential fees than are included under information blocking. The fees in this Condition and Maintenance of Certification requirement are specific to certified API technology while the fees considered in information blocking relate to the access, exchange, or use of EHI regardless of the particular technology used.

Clarifications:

• The nature of the costs charged under § 170.404(a)(3)(ii) depends on the scope of the work to be undertaken by a Certified API Developer (i.e., how much or how little labor an API Information Source requires of the Certified API Developer to deploy and upgrade the certified API technology).
• Regarding the “development, deployment, and upgrades” described in § 170.404(a)(3)(ii), while we understand that there is overlap between features of the certified API technology and the “broader EHR product,” we refer specifically to development, deployment, and upgrades made to “certified API technology” as defined in § 170.404(c). Namely, development, deployment, and upgrades made to the capabilities of Certified Health IT Modules that fulfill the API-focused certification criteria adopted at § 170.315(g)(7) through (10).
• Regarding the use of the term “developing” in § 170.404(a)(3)(ii), fees for “developing” certified API technology comprise the Certified API Developer’s costs of designing, developing, and testing certified API technology. Fees for developing certified API technology must not include the Certified API Developer’s costs of updating the non-API related capabilities of the Certified API Developer’s existing Health IT Modules, including its databases, as part of its development of the certified API technology. These costs are typically connected to past business decisions made by the Certified API Developer and typically arise due to Health IT Modules being designed or implemented in nonstandard ways that unnecessarily increase the complexity, difficulty or burden of accessing, exchanging, or using EHI.
• Regarding the use of the term “deploying” in § 170.404(a)(3)(ii), a Certified API Developer’s fees for “deploying” certified API technology comprise the Certified API Developer’s costs of operationalizing certified API technology in a production environment. Such fees include, but are not limited to, standing up hosting infrastructure, software installation and configuration, and the creation and maintenance of API Information Source administrative functions. Fees for “deploying” certified API technology do not include the costs associated with managing the traffic of API calls that are used to access the certified API technology, which a Certified API Developer can only recover under the permitted fee for usage support costs (§ 170.404(a)(3)(iii)). We emphasize that for the purpose of this Condition of Certification, we consider that certified API technology is “deployed” by the customer—the API Information Source—that purchased or licensed it.
• Regarding the use of the term “upgrading” in § 170.404(a)(3)(ii), a Certified API Developer’s fees for “upgrading” certified API technology comprise the Certified API Developer’s costs of supplying an API Information Source with an updated version of certified API technology. Such costs would include the costs required to bring certified API technology into conformity with new requirements of the Certification Program, upgrades to implement general software updates (not otherwise covered by development fees or under warranty), or developing and releasing newer versions of the certified API technology at the request of an API Information Source. The nature of the costs that can be charged under this category of permitted fees depends on the scope of the work undertaken by a Certified API Developer (i.e., how much or how little labor an API Information Source requires of the Certified API Developer to upgrade the certified API technology being supplied from one version or set of functions to the next).
• Should API Users generate revenue from the use of their apps, any fee an API Information Source may impose would not be in scope for this Condition and Maintenance of Certification, but could be covered by the information blocking provisions. Accordingly, we emphasize that such stakeholders should take care to ensure they are compliant with the information blocking provisions and other federal and state laws and regulations that may prohibit or limit certain types of relationships involving remuneration.

Clarifications:

• “Usage-based” fees are fees imposed by a Certified API Developer to recover costs typically incurred for supporting API interactions at increasing volumes and scale within established service levels. That is, “usage-based” fees recover costs incurred by a Certified API Developer due to the actual use of the certified API technology once it has been deployed (e.g., costs to support a higher volume of traffic, data, or number of apps via the certified API technology).
• A Certified API Developer's “incremental costs” comprise the Certified API Developer's costs that are directly attributable to supporting API interactions at increasing volumes and scale within established service levels.
• A Certified API Developer should “price” its costs of supporting access to the certified API technology by reference to the additional costs that the Certified API Developer would incur in supporting certain volumes of API use.
• Usage fees for certified API technology will only apply when the Certified API Developer acts on behalf of the API Information Source to deploy its certified API technology. In scenarios where the API Information Source, such as a large hospital system, assumes full responsibility for the technical infrastructure necessary to deploy and host the certified API technology it has acquired, the volume and scale of its usage would be the API Information Source’s sole responsibility, and a Certified API Developer would not be permitted to charge usage-based fees.
• The costs recovered under “usage-based” fees can only reflect “post-deployment” costs. As such, “usage-based” fees cannot include any costs necessary to prepare and “get the certified API technology up, running, and ready for use,” which are costs that must be recovered as part of the deployment services delivered by the Certified API Developer if permitted under § 170.404(a)(3)(ii).
• We clarify that API usage fees related to API “read” services for multiple patients would be calculated using a similar methodology to calculate API usage fees related to API “read” services for single patients. These “usage-based” fees are fees imposed by a Certified API Developer to recover the costs typically incurred to support API interactions for API “read” services for multiple patients once these services have been deployed. This could include, but not be limited to, costs to support a higher volume of traffic, data, or number of apps via the certified API technology (which could include higher costs for hardware, including server space).

Clarifications:

• We clarify that the value-added services need to be provided in connection with and supplemental to the development, testing, and deployment of production-ready software applications that interact with certified API technology. A fee is permitted if it relates to a service that a software developer can elect to purchase from a Certified API Developer, but is not required to purchase in order to develop and deploy production-ready apps for certified API technology.
• We note that examples used to illustrate when a fee would or would not qualify as a “value-added service,” such as app store listing, are demonstrative, but not required unless otherwise noted in the regulation text.
• We permit fees for services associated with the listing and promotion of apps beyond basic application placement so long as the Certified API Developer ensures that basic access and listing in the app store is provided free of charge (if an application developer depended on such listing to efficiently and effectively develop and deploy production-ready apps for use with certified API technology).
• To the degree that a Certified Health IT Developer offers value-added services associated with certified API technology, the Condition of Certification covers its practices related to certified API technology only. Conversely, this Condition of Certification would not apply to any practices that do not involve certified API technology.

Clarifications:

• For the requirement that a Certified API Developer must provide notice and a reasonable opportunity for API Information Sources and API Users to update their applications to preserve compatibility with certified API technology and to comply with applicable terms and conditions, we note that the notice could include a public notice made available on a website, but also encourage Certified API Developers to contact API Information Source customers and registered API Users (application developers) directly prior to updating business and technical documentation.
• For third-party applications chosen by individuals to facilitate their access to their electronic health information (EHI) held by actors, there would not be a need for a business associate agreement  as discussed in the ONC Cures Act Final Rule. There would also generally not be a need for “vetting” on security grounds and such vetting actions otherwise would be an interference.
• We clarify that this rule does not prohibit Certified API Developers from forming business relationships with API Users.
• Application developer affirmations to health IT developers regarding the ability of their applications to secure a refresh token, a client secret, or both, must be treated in a good faith manner consistent with the provisions established in the openness and pro-competitive conditions at § 170.404(a)(4). 

Clarifications:

• This requirement applies to a Certified API Developer with a Health IT Module certified to the certification criterion adopted in § 170.315(g)(10).
• The authenticity verification process finalized in § 170.404(b)(1)(i) is optional, but if instituted, the authenticity verification process must be completed within 10 business days.

Clarifications:

• Certified API Developers must make available appropriately scoped service base URLs that can be used by patients to access their EHI for Health IT Modules certified to § 170.315(g)(10).
• As discussed in section VIII.C.6.c of the ONC Cures Act Final Rule, API Information Sources who locally manage their Fast Healthcare Interoperability Resources (FHIR) servers without Certified API Developer assistance cannot refuse to provide to Certified API Developers the FHIR service base URL(s) that is/are necessary for patients to use to access their EHI. Equally, pursuant to this Maintenance of Certification requirement, they would be required to publish the FHIR service base URLs they centrally manage on behalf of API Information Sources. 
• To be open and transparent to the public, developers must provide a hyperlink to the list of service base URLs to be published with the product on the ONC Certified Health IT Product List (CHPL). Certified API Developers are encouraged to use a standardized format when publishing the service base URLs for all of its customers. ONC recommends Certified API Developers leverage the HL7 FHIR 4.0.1 “Endpoint” resource, or profiles of this resource such as the Validated Healthcare Directory Implementation Guide STU1 “vhdir-endpoint” profile, to represent service base URLs that can be used by patients to access their health information. ONC also encourages developers to provide as much information about the service base URLs as available, including the API Information Source’s organization details, such as name, location, and provider identifiers (e.g., NPI, CCN, or health system ID). These steps will help industry coalesce around standards that enable application developers to more easily and consistently provide patients access to their electronic health information.

Clarifications:

• A Certified API Developer with certified API technology previously certified to the certification criterion in § 170.315(g)(8) must provide all API Information Sources with such certified API technology with certified API technology certified to the criterion in § 170.315(g)(10) by no later than December 31, 2022.

Clarifications:

• By no later than April 5, 2021, a Certified API Developer with Health IT Module(s) certified to the certification criteria in § 170.315(g)(7), (8), or (9) must comply with § 170.404(a), including revisions to its existing business and technical API documentation and make such documentation available via a publicly accessible hyperlink that allows any person to directly access the information without any preconditions or additional steps.

Clarifications:

• API Users can include, but are not limited to, software developers, patients, health care providers, and payers.
• A person or entity is permitted to serve more than one role for the terms defined in § 170.404(c).
• Stakeholders meet the definition of a term defined in § 170.404(c) based on the context in which they are acting.