ONC Slams Information Blocking by Vendors, Providers

Ken Terry

April 10, 2015

Responding to a December 2014 request from Congress, the Office of the National Coordinator for Health Information Technology (ONC) on Friday released a report that said there's credible evidence that some health information technology (health IT) vendors and healthcare providers have erected barriers to the free flow of information between entities that use different electronic health records (EHRs).

However, the report did not name any EHR developers or providers that engage in this "health information blocking." In addition, ONC said that it doesn't have the authority to stop the practice or demand that vendors or providers produce documents related to certain types of information blocking.

Among the methods of information blocking cited in the report are high charges for interfaces that allow information exchange among physician practices. These charges can be exorbitant. Although the report didn't mention specific prices, the Wall Street Journal quoted Farzad Mostashari, MD, a former national coordinator of health IT, as saying that some vendors charge small practices up to $29,000 for an interface with disparate systems, and as much as $1 per electronic page to transmit lengthy patient files.

Knowingly Interfere

The ONC report defined information blocking as something that occurs "when persons or entities knowingly and unreasonably interfere with the exchange or use of electronic health information." Drawing on complaints to ONC from healthcare providers — about 60 in 2014 alone — as well as other anecdotal reports and empirical research, it said there was strong evidence that this was happening.

In a press conference, Jodi Daniel, JD, MPH, director of the office of policy for ONC, said, "We don't think that all actions that interfere in some way with the flow of information are problematic or should be addressed. For instance, there may be legitimate reasons for information not to flow." Among these might be privacy concerns, state laws, or patient safety issues, she noted.

But the report pointed to a number of practices that, in ONC's view, do constitute information blocking. Among these are:

  • Contract terms or policies that restrict individuals' access to their electronic health information or restrict the exchange or use of that information for treatment and other permitted purposes.

  • Charging prices or fees (such as for data exchange, portability, and interfaces) that make exchanging and using electronic health information cost prohibitive.

  • Developing or implementing health IT in nonstandard ways that are likely to substantially increase the costs, complexity, or burden of sharing electronic health information.

  • Developing or implementing health IT in ways that are likely to "lock in" users or electronic health information; lead to fraud, waste, or abuse; or impede innovations and advancements in health information exchange and health IT-enabled care delivery.

For example, the report said, some EHR developers either prohibit or make it unnecessarily difficult for customers to connect to third-party health IT modules that have been ONC-certified. Vendors may also prohibit customers from using an ONC-certified health information service provider (HISP) of their own choosing, instead requiring them to use the developer's own HISP.

"Health care providers have also been accused of information blocking," the report noted. "A common charge is that some hospitals or health systems engage in information blocking to control referrals and enhance their market dominance."

ONC pointed out that it has undertaken several actions to reduce information blocking. For example, in its current notice of proposed rulemaking for EHR certification, it has proposed that ONC-endorsed certification bodies go out in the field to see whether there are implementation barriers to the technical capabilities of a certified product, Daniel explained. ONC has also proposed transparency requirements for both vendor pricing and contract restrictions.

The problem with using this approach to restrain information blocking, the report noted, is that suspending or terminating an EHR's certification would penalize the customers of that EHR. In addition, it isn't currently feasible to tie the certification criteria to information-blocking practices.

ONC might also help federal and state law enforcement agencies identify and investigate information blocking in cases where they were unlawful, the report said. But much of what ONC has defined as information blocking may not be illegal under federal law, Daniel observed.

As part of ONC's national interoperability roadmap, it has proposed a governance framework for interoperability among health IT systems. In the new report, the office suggests that this framework might inhibit information blocking by establishing clear principles for data sharing. In addition, the report noted that ONC could work with the Office of Civil Rights in the Department of Health and Human Services to better explain Health Insurance Portability and Accountability Act privacy rules to providers so that they couldn't be used as an excuse not to share information.

But regardless of whatever else might be done, ONC said, it will have to work with Congress and other stakeholders to ensure that better methods are available to stop information blocking and ensure interoperability.

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