Information Blocking and Interoperability

By Nicolas Terry

The “Cromnibus” spending bill signed by the President on December 16 rightly upset Senator Warren and not just for providing luxury cars to a feckless Congress. However, in general the bill ignored healthcare. There was no new money for those ACA “villains” CMS and IRS and only a little more for NIH (resulting in net reductions all around given inflation). Of course constituencies have to be pandered to, so there was a symbolic $10 million cut from the moribund IPAB. Meanwhile, the CDC did well, HRSA picked up a few telemedicine dollars, but ONC didn’t get everything it wanted. However, look closer and it seems that during the convoluted legislative process someone threw a meaty wrench into the gears of an already flailing meaningful use program.

As I have discussed at length here and here the meaningful use subsidy program for EHRs may have delivered hundreds of thousands of mediocre electronic health records systems into provider offices but has failed to deliver effective data sharing. ONC knows this is an issue, is aware of and discussed the JASON report, has its own “10-year vision” and emphasizes interoperability in its recently released Health IT Strategic Plan (Disclosure: I serve on the HIT Committee Consumer Workgroup, but these views are mine alone). But, some kind of showdown has been brewing for a while. Have the HITECH billions been wasted? Was the regulatory problem in meaningful use or in certification? Are the HIT developers to blame or health care providers? (Answer: Yes). And, the AMA being “appalled” aside, what happens now that the meaningful use carrots have begun morphing into sticks?

One could well have imagined a few more Congressional hearings in the New Year and so it wasn’t too surprising that Cromnibus directed the HIT Policy Committee to submit a report within 12 months “regarding the challenges and barriers to interoperability.”

But, there was to be much more. In March 2014 an FTC Workshop on health care competition hosted a spirited debate on how some EHRs may have created provider lock-in with proprietary data formats. By June the Senate Appropriations Committee had published a draft bill taking issue with “information blocking,” apparently suggesting that the interoperability fail went beyond ineptness in sharing to the creation of silos by design. It was that Committee’s language that a few days ago was dumped into the Cromnibus. And it is very strange legislative language. In part ONC is merely “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.” Thereafter the language becomes more directive, “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.” And then the knife comes out: “ONC should take steps to decertify products that proactively block the sharing of information.” Within 90 days ONC must produce a report evaluating the blocking problem, estimating “the number of vendors or eligible hospitals or providers who block information” and providing a comprehensive ameliorative strategy.

For a while there has been an open split among the HIT vendors. This strange legislative mandate has for now declared a winner. The vendors’ Electronic Health Record Association was not amused, arguing that products that satisfied certification criteria should not now face decertification. However, athenahealth which noisily resigned from the Association in April, seemed far happier, “It is entirely appropriate for Congress to press ONC to use its leverage to improve the unacceptable health IT status quo, and we are pleased to finally see tangible action to that end.”

This debate goes back to the early days of HITECH and the initial conception of meaningful use. For there to be interoperability and effective sharing there must be data liquidity. That argument was made forcibly by PCAST in 2010 when it pointed out the “danger that EHR adoption during early stages of meaningful use may exacerbate the problem of incompatible legacy systems” and argued for “the creation and dissemination of a universal exchange language for healthcare information and an infrastructure for locating patient records.” PCAST lost the battle in 2010. In the next 90 days maybe wiser heads will prevail.

Nicolas P. Terry

Nicolas Terry is the Hall Render Professor of Law at Indiana University McKinney School of Law where he serves as the Executive Director of the Hall Center for Law and Health and teaches various healthcare and health policy courses. His recent scholarship has dealt with health privacy, mobile health, the Internet of Things, Big Data, AI, and the opioid overdose epidemic. He serves on IU’s Grand Challenges Scientific Leadership Team, working on the addictions crisis and is the PI on addictions law and policy Grand Challenge grants. His podcast is at TWIHL.com, and he is @nicolasterry on Twitter.

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