Health IT Now’s statement on the Senate HELP Committee hearing on Information blocking

Health IT Now issued the following statement in response to the Senate HELP Committee hearing on Information blocking:

Health IT Now continues to believe that information blocking is one of the main impediments to widespread interoperability.

This business practice barrier to interoperability does not just thwart the federal and private efforts to more fully share clinical information to improve patient outcomes, information blocking also consolidates provider markets and may create inappropriate referral patterns that financially benefit provider and vendor colluders. It also might have a real world impact on patients, their pocket books, and their health.

We support Congress changing the law to punish anyone who intentionally block information. This should be done through audit, confirming products meet program rules, and new enforcement tools. This is an information sharing program. Blocking information in a sharing program – and then subsidizing such unfair business practices– seems more than counter-productive.

We believe information blocking is not acceptable. Business models built around data silos have no place in a healthcare system experiencing the challenges currently faced in this country. These business models certainly have no place in a taxpayer funded program designed to facilitate information exchange.

Information blocking means different things to different people.

What is Information Blocking?

BLOG // Joel White // January 6, 2015 

Cromnibus

The massive 701 page government spending bill that was signed into law last month includes a section that funds ONC operations at $60 million. Also tucked away in the explanatory statement that accompanies the Cromnibus and outlines the measures in plain English are instructions on interoperability and information blocking.

Congress included the following specific instructions to ONC on information blocking:

Information Blocking.–The Office of the National Coordinator for Health Information Technology (ONC) is urged to use its certification program judiciously in order to ensure certified electronic health record technology (CEHRT) provides value to eligible hospitals, eligible providers and taxpayers. ONC should use its authority to certify only those products that clearly meet current meaningful use program standards and that do not block health information exchange. ONC should take steps to decertify products that proactively block the sharing of information because those practices frustrate congressional intent, devalue taxpayer investments in CEHRT, and make CEHRT less valuable and more burdensome for eligible hospitals and eligible providers to use. The agreement requests a detailed report from ONC no later than 90 days after enactment of this act regarding the extent of the information blocking problem, including an estimate of the number of vendors or eligible hospitals or providers who block information. This detailed report should also include a Comprehensive strategy on how to address the information blocking issue.

And these on interoperability:

Interoperability.–The agreement directs the Health IT Policy Committee to submit a report to the House and Senate Committees on Appropriations and the appropriate authorizing committees no later than 12 months after enactment of this act regarding the challenges and barriers to interoperability. The report should cover the technical, operational and financial barriers to interoperability, the role of certification in advancing or hindering interoperability across various providers, as well as any other barriers identified by the Policy Committee.

Why did Congress include these provisions? I believe lawmakers are palatably frustrated with the lack of real or perceived progress on interoperability. I also believe there is outrage on the information blocking issue because Congress gave a lot of money ($30 billion) to providers (and ultimately EHR vendors) to help them exchange information. Information blocking is thus a slap in Congress’ face and stands in stark contrast to why lawmakers created the program in the first place. Let’s tackle a few major questions in this debate.

What is information blocking?

Information blocking means different things to different people. There are several levels of information blocking:

  1. In the most extreme case, information is sent but is not accepted or is not usable by another person or system.
  2. In less extreme cases, though still highly problematic, it is: Using proprietary data formats to lock customers into systems.
  3. Failing to publish APIs for MU required data exchange elements.
  4. Charging differential fees unrelated to increased costs of exchanging information or requiring the use of middleware to complete transactions with different systems.

So “information blocking” is a bit of a misnomer. Information doesn’t often get blocked outright – the real world experience is often more nuanced. In formal regulations, the administration has referred to the impeding of information as creating or maintaining “walled gardens.”

A walled garden refers to a limited set of technology or media information provided to users with the intention of creating a monopoly or secure information system. Put another way, a walled garden is a closed platform or ecosystem where the carrier or service provider has control over applications, content, and media and restricts convenient access to non-approved applications or content.

Information blocking occurs not because different technologies or standards prevent data transfer between electronic health records, but because some electronic health record vendors or health care providers engage in this activity as a business practice. This is not a technology problem, but a competition issue.

Industry and provider sources indicate that the establishment and propagation of walled gardens is done to sell additional EHRs or to facilitate vertical and horizontal integration by controlling the flow of clinically relevant health information. For example, one vendor of EHRs has boasted to providers that so long as all providers implement their specific technology solution, systems will be interoperable and that “it doesn’t work when you mix and match vendors.”  More recently, some vendors have begun charging additional fees to allow providers to extract patient data from their systems, even though the marginal cost of providing that data is small.

What’s the practical impact?

This business practice barrier to interoperability does not just thwart the federal and private efforts to more fully share clinical information to improve patient outcomes, information blocking also consolidates provider markets and may create inappropriate referral patterns that financially benefit provider and vendor colluders. It also might have a real world impact on patients, their pocket books and their health.

Before my dad died, he was on Warfarin, a blood thinner to help those with heart disease. Patients on Warfarin must carefully monitor their diet, how they shave, what activities they are engaged in and what other drugs they may or may not take. What happens if a doctor can’t see that a patient is on Warfarin because their EHR vendor has blocked information, and the doctor prescribes something that might kill the patient? Information blocking thus erodes provider trust in the systems they use and leads to unsafe clinical environments because partial information on a patient leads to medical errors and adverse events.

Meanwhile, taxpayers are subsidizing business practices in an information sharing program that blocks information. For example, about 20 percent of diagnostic tests in Medicare are duplicative.  If a physician cannot see a test, he or she will order another.

We believe information blocking is not acceptable. Business models built around data silos have no place in a healthcare system experiencing the challenges currently faced in this country.  These business models certainly have no place in a taxpayer funded program designed to facilitate information exchange.

How prevalent is information blocking?

It is not clear how prevalent or widespread the walled garden problem is because neither the government nor the private sector uniformly tracks this information. Health IT Now has previously suggested Meaningful Use include a standard to test whether information can be exchanged between different EHR systems post-certification. The test requirement was eliminated when the final standards for Stage 2 were codified. Maintaining the test of clinical exchange would have provided CMS with a valuable tool to determine where exchange problems exist and how to correct them. ONC and software vendors would then have actual data to identify any effort to create data monopolies.

To the extent provider and vendor contracts facilitate monopoly rents and promote consolidation in already heavily concentrated markets, we suggest the FTC and DOJ request information from participating vendors about business practices related to walled gardens in an effort to better understand the prevalence of the problem. This would help inform the ONC report due in March and again in December.

What to expect?

  1. A report from ONC on or around March 11 on information blocking.
  2. A report from ONC in December 2015 on interoperability.
  3. Additional congressional oversight and legislation on both issues.

And the arrogance continues

As final aside – I’ve heard from some that ONC doesn’t have to follow the report language as it is “just report language.”

Perhaps.

But I’ve spoken to ONC, and they are taking the language seriously. Most recently, the Department of Health and Human Services Office of the Inspector General identified “costs to establish the capability to share data” as a key factor impeding the interoperability of electronic health records. If you follow health IT policy, you’ll note ONC is struggling to maintain their funding. The information blocking language is included in a funding bill. Congress often notes progress on issues like this in future funding bills. So I am not writing this off, and neither is ONC.

The other issue I’ve heard from some is “well, ONC decertification would never happen because it would be a disaster for those who have already implemented these systems.”

Again, perhaps. But how about the ability to sell new systems? In other words, ONC or Congress could leave existing – poorly operating – systems that block information in place but state, as a matter of policy, the blocking systems no longer make the cut for MU. Put simply, say “bye-bye” to new sales.

I’d hate to be an information blocker.