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Information Blocking? Prove It First, Say EHR Vendors to ONC

By Jennifer Bresnick

- When it comes to actively blocking health information exchange and interoperability, EHR vendors are innocent until proven guilty, industry representatives from the HIMSS EHR Association (EHRA) asserted in a letter sent to the ONC in response to an April report raising the issue. 

Information blocking and health data interoperability

Without a clear, concise, and evidence-based definition for information blocking, it is premature for rule makers to place the blame for poor industry-wide interoperability solely on the shoulders of EHR vendors, and too early to include anti-data blocking provisions in new legislation.

The ONC was careful not to name names or identify specific incidents in its discussion of industry practices that may or may not actively prevent providers from exchanging health information between disparate systems, and the EHRA agrees, unsurprisingly, that this approach was the correct one. 

“Generally, as ONC asserts, measuring and assessing which of the specific identified ‘practices’ (e.g., contract terms and policies, cost-prohibitive pricing, or implementing non-standard interoperability) cross the information-blocking threshold is challenging, requires careful consideration, and will be very situation-specific,” the letter says. 

The array of vendors who signed the letter, including heavyweights like Epic, Cerner, Greenway, McKesson, NextGen, Allscripts, GE Healthcare, and MEDITECH, “urge caution” when designating common business practices like financial fees for record exchange or prioritizing health information exchange with a frequent business partner over a less common one as purposeful information blocking tactics.

READ MORE: What Healthcare IT Users Don’t Really Need to Know about FHIR

“Any assessment of potential information blocking must be fact-based, given a specific situation, and include the perspectives of all stakeholders before declaring that information blocking has, in fact, occurred,” the association argues.

“The EHRA recognizes the perception that information blocking exists, but submits that, in many cases, there is no intent to interfere, but rather a series of events that result in less data exchange than desired by some parties (e.g., conflicting provider business models, misalignment of objectives/priorities, lack of funding, limited infrastructure, etc.).”

The ONC and other rule making bodies may also be responsible for creating situations where unintentional information blocking may occur, the EHRA points out.

“For example, the original certification criterion for secure transport was bundled with the HISP criterion, resulting in a certification requirement that was inflexible and inadvertently limited provider choice,” the letter says.

“Public health agencies do not always follow the same standards to which vendors must certify. Furthermore, certification criteria may not address all relevant aspects of the interoperability use case (e.g., provider directories), thus creating inadvertent gaps in the necessary toolset.”

READ MORE: Unfiltered EHR Data Overloads Physicians, Perpetuates Burnout

“These examples of unintended consequences of regulatory action indicate the need for great care in how we craft regulations, guidance, and best practices that allow for the necessary flexibility to avoid locking providers into specific solutions,” the EHRA says.

The Association recognizes the growing demand for health information exchange and interoperability across the industry, and acknowledges the need for more robust data standards, stronger data governance frameworks, and better collaboration between all stakeholders as rule makers clarify HIPAA requirements and other guidelines that have caused confusion over patient privacy and data disclosure.

But the creation of a fluid, data-driven care continuum will not come without its costs, the vendors caution, and commercial entities should not be penalized for trying to turn a reasonable profit when solving complex problems for their customers.

“Costs are not limited to fees that a developer might charge for interfaces and interoperability services, but also include the providers’ resources to deploy and maintain those interfaces,” they said. “Costs must be evaluated in the context of the difficulty of developing and maintaining the interface, the number of potential users of that interface, the compliance with certification standards by the exchange partner, and the value gained from the data exchange.”

“As providers’ processes further align to support consistent data exchange and as standards are harmonized around the content and methods of data exchange, it is reasonable to expect that overall interoperability-related costs may go down, but will not disappear entirely.”

READ MORE: CT Medical Society Announces New Health Information Exchange

The process of improving health data interoperability could be greatly facilitated by establishing a stronger business case for providers and vendors alike, the letter notes.  The shift to value-based reimbursement is making data-driven population health management capabilities a key competency for healthcare providers

But organizations that are still receiving some or all of their revenue from fee-for-service models still have an incentive to keep their data to themselves.  Accelerating the transition to accountable care payment structures could reduce the financial tensions that may lead to information blocking, the EHRA suggests.

The ONC will also need to create more cohesive and specific parameters for true information blocking if rule makers plan to collect fines or levy other penalties upon entities found to be at fault. 

Recent legislation introduced by two Senators would give the HHS Inspector General the authority to investigate claims of information blocking, and institute fines of up to $10,000 for each violation.  EHR products that do not meet stringent interoperability requirements could also lose their ONC certification.

However, until the ONC comes up with a more concrete sense of what constitutes active and malicious information blocking, and devises an evidence-based way to assign responsibility for such incidents, EHR vendors should not be liable for a nebulous sense that the industry ought to be doing a better job with communication.

“We find, based on review of the report and subsequent policy discussions, that the concept of ‘information blocking’ is still very heterogeneous, mixing perception, descriptive, and normative issues in ways that are not easily untangled,” the letter concludes.

“As a result, this concept and ‘label’ does not provide a good basis yet for policy actions or enforcement, as it could encompass a broad range of actions, few of which are likely to warrant civil or other penalties.”


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