ONC calls out information blockers

'Some EHR developers allegedly charge a substantial per-transaction fee each time a user sends, receives or searches for patient data
By Mike Miliard
10:13 AM

Having received many complaints in recent months about vendors and providers engaging in information blocking, the Office of the National Coordinator for Health IT is "becoming increasingly concerned about these practices, which devalue taxpayer investments in health IT and are fundamentally incompatible with efforts to transform the nation’s health system."

That's according to National Coordinator Karen DeSalvo, MD, and Jodi G. Daniel, ONC's director of the Office of Policy Planning, writing in a blog post that calls out "persons or entities (who) knowingly and unreasonably interfere with the exchange or use of electronic health information."

ONC has issued a report to Congress that attempts to assess the extent of such practices and lay out a strategy to combat them.

"An examination of these issues is both timely and warranted," ONC officials write in the report. Having spent more than $28 billion in the past five years to drive IT adoption – and, ultimately, a connected and interoperable health system – a few bad actors are impeding more fluid data exchange.

[See also: FTC, ONC put vendors on notice]

"While many stakeholders are committed to achieving this vision, current economic and market conditions create business incentives for some persons and entities to exercise control over electronic health information in ways that unreasonably limit its availability and use," according to the report. "These concerns likely will become more pronounced as both expectations and the technological capabilities for electronic health information exchange continue to evolve and mature."

In their blog post, DeSalvo and Daniel write that "the full extent of the information blocking problem is difficult to assess, primarily because health IT developers impose contractual restrictions that prohibit customers from reporting or even discussing costs, restrictions and other relevant details."

But the report lays out plenty of anecdotal evidence of such practices, pointing to a "substantial body of complaints" ONC has received – including some 60 unsolicited reports of potential information blocking in 2014 alone.

"Most complaints of information blocking are directed at health IT developers," ONC tells Congress. "Many of these complaints allege that developers charge fees that make it cost-prohibitive for most customers to send, receive or export electronic health information stored in EHRs, or to establish interfaces that enable such information to be exchanged with other providers, persons, or entities."

Without naming names, the report charges that "some EHR developers allegedly charge a substantial per-transaction fee each time a user sends, receives, or searches for (or 'queries') a patient’s electronic health information. EHR developers may also charge comparatively high prices to establish certain common types of interfaces – such as connections to local labs and hospitals.

"Many providers also complain about the costs of extracting data from their EHR systems for their own use or to move to a different EHR technology," according to the report. Such complaints "often allege a combination of one or more contractual terms. Examples of contractual restrictions include express prohibitions, penalty clauses, and cancellation of warranty clauses."

Providers, too, are put on notice for data hoarding.

"A common charge is that some hospitals or health systems engage in information blocking to control referrals and enhance their market dominance," according to ONC.

Nonetheless, "providers have cited many reasons for constraining access to electronic health information." A typical argument is that privacy and security requirements prohibit data sharing. "Such constraints are not information blocking insofar as they are consistent with the requirements and policies established by federal and state law that protect patients’ electronic health information," the report points out. "But it has been reported to ONC that privacy and security laws are cited in circumstances in which they do not in fact impose restrictions."

ONC adds that it "has also received complaints or anecdotes of potential information blocking that allege coordination between developers and their provider customers to restrict exchange with unaffiliated providers."

Among the steps ONC suggests to address both specific instances of data blocking and the more systemic issues that lead to such practices:

  • Proposing new certification requirements that strengthen surveillance of certified health IT capabilities "in the field."
  • Proposing new transparency obligations for certified health IT developers that require disclosure of restrictions, limitations, and additional types of costs associated with certified health IT capabilities.
  • Specifying a nationwide governance framework for health information exchange that establishes clear principles about business, technical, and organizational practices related to interoperability and information sharing.
  • Working with the Centers for Medicare & Medicaid Services to coordinate health care payment incentives and leverage other market drivers to reward interoperability and exchange and discourage information blocking.
  • Helping federal and state law enforcement agencies identify and effectively investigate information blocking in cases where such conduct may violate existing federal or state laws.
  • Working in concert with the HHS Office for Civil Rights to improve stakeholder understanding of the HIPAA Privacy and Security standards related to information sharing.

Nonetheless, "while these actions are important, they do not provide a comprehensive solution to the information blocking problem," write DeSalvo and Daniel.

"Indeed, the most definitive finding of our report is that most information blocking is beyond the current reach of ONC or any other federal agency to effectively detect, investigate, and address. Moreover, the ability of innovators and the private sector to overcome this problem is limited by a lack of transparency and other distortions in current health IT markets.

"For these and other reasons discussed in our report, addressing information blocking in a comprehensive manner will require overcoming significant gaps in current knowledge, programs, and authorities," they write. "We believe that in addition to the actions above, there are several avenues open to Congress to address information blocking and ensure continued progress towards the nation’s health IT and health care goals."

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