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Health IT Group Raises Good Questions About “Information Blocking”

Posted on September 8, 2017 I Written By

Anne Zieger is a healthcare journalist who has written about the industry for 30 years. Her work has appeared in all of the leading healthcare industry publications, and she's served as editor in chief of several healthcare B2B sites.

The 21st Century Cures Act covers a great deal of territory, with provisions that dedicate billions to NIH funding, Alzheimer’s research, FDA operations and the war on opioid addiction. It also contains a section prohibiting “information blocking.”

One section of the law lists attempts to define information blocking, and lists some of the key ways healthcare players drag their feet when it comes to data sharing. The thing is, some industry organizations feel that these provisions raise more questions than they answer.

In an effort to nail things down, a trade organization calling itself Health IT Now has written to the HHS Office of Inspector General and ONC head Donald Rucker, MD, asking them to issue a proposed rule answering their questions.  Parties signing the letter include a broad range of healthcare and health IT organizations, including the American Academy of Family Physicians, athenahealth, DirectTrust, AMIA, McKesson and Oracle.

I’m not going to list all the questions they’ve asked. You can read the entirety yourself. However, I will share two questions and offer responses of my own. One critical question is:

  • What is information blocking and what is not?

I think most of us know what the law is trying to accomplish, e.g. foster the kind of data sharing needed to accomplish key research and patient care outcomes goals. And the examples of what it considers information blocking make sense:

  • Practices that restrict authorized access, exchange, or use [of health data] under applicable State or Federal law
  • Implementing health information technology in nonstandard ways that are likely to substantially increase the complexity or burden of accessing exchanging or use of electronic health information
  • Implementing health information technology in ways that are likely to lead to fraud, waste, or abuse, or impede innovations and advancements health information access, exchange, and use

The problem is, there are many more ways to hamper the sharing of electronic health data. The language used in the law can’t anticipate all of these strategies, which leaves compliance with the law very much open to interpretation.

This, logically, leads to how businesses can avoid running afoul of the law:

  • The statute institutes penalties on vendors to $1 million per violation. How should “per violation” be defined?

    Given the minimum detail included in the legislation, this is a burning question. Vendors need to know precisely whether they’re in the clear, violated the statute once or flouted it a thousand times.

After all, vendors may violate the statute

  • When they refuse data access to one individual within a business one time
  • When they don’t comply with a specific organization’s request regardless of how many employees were in contact
  • When a receiving organization doesn’t get all the data requested at the same time
  • When the vendor asks the receiving organization to pay an administrative fee for the data
  • When individuals try to access data through the web and find it difficult to do so

Would a vendor be on the hook for a single $1 million fine if it flat out refused to share data with a client?  How about if it refused twice rather than once? Are both part of the same violation?

Does the $1 million fine apply if the vendor inadvertently supplies corrupted data? If so, does the fine still apply if the vendor attempts to remedy the problem? How long does the vendor have to respond if they are informed that the data isn’t readable?

What about if dozens or even hundreds of individuals attempt to access data on the web can’t do so? Has the vendor violated the statute if it has an extended web outage or database problem, and if so how long does it should have to get web-based data access back online? Does each attempt to access the data count as a violation?

What standard does the statute establish for standard vs. non-standard data formats?  Could a vendor be cited once, or more than once, for using a new and emerging data format which is otherwise respected by the industry?

As I’m sure you’ll agree, these are just some of the questions that need to be answered before any organization can reasonably understand how to comply with the law’s information blocking provisions. Asking regulatory agencies to clarify their expectations is more than reasonable.

Study: “Information Blocking” By Vendors And Providers Persists

Posted on April 6, 2017 I Written By

Anne Zieger is a healthcare journalist who has written about the industry for 30 years. Her work has appeared in all of the leading healthcare industry publications, and she's served as editor in chief of several healthcare B2B sites.

A newly-released study suggests that both EHR vendors and providers may still be interfering with the free exchange of patient healthcare data. The researchers concluded that despite the hearty disapproval of both Congress and healthcare providers, the two still consider “information blocking” to be in their financial interest.

To conduct the study, which appears in this month’s issue of The Milbank Quarterly, researchers conducted a national survey between October 2015 and January 2015. Researchers reached out to leaders driving HIE efforts among provider organizations. The study focused on how often information blocking took place, what forms it took and how effective various policy strategies might be at stopping the practice.

It certainly seems that the practice continues to be a major issue of concern to HIE leaders. Eighty-three percent of respondents said they were very familiar with information blocking, while just 12 percent reported having just some familiarity with the practice and 5 percent said they had minimal familiarity. On average, the respondents offered a good cross-industry view, having worked with 18 EHR vendors and with 31 hospitals or health systems on average.

Forms of Blocking:

If the research is accurate, information blocking is a widespread and persistent problem.

When questioned about specific forms of information by EHR vendors, 29 percent of respondents said that vendors often or routinely roll out products with limited interoperability capabilities. Meanwhile, 47 percent said that vendors routinely or often charge high fees for sharing data across HIEs, and 42 percent said that the vendors routinely or often make third-party access to standardized data harder than it needs to be. (For some reason, the study didn’t mention what types of information blocking providers have instituted.)

Frequency of blocking:

It’s hardly surprising that most of the respondents were familiar with information blocking issues, given how often the issue comes up.

In fact, a full fifty percent said that EHR vendors routinely engaged in information blocking, 33 percent said that the vendors blocked information occasionally, with only 17 percent stating that EHR vendors rarely did so.

Interestingly, the HIE managers said that providers were also engaged in information blocking, though fewer did so than among the vendor community. Twenty-five percent reported that providers routinely engage in information blocking, and 34 percent saying that providers did so occasionally. Meanwhile, 41 percent said information blocking by providers was rare.

Motivations for blocking:

Why do HIE participants block the flow of health data? It seems that at present they get something important out of it, and unless somebody stops them it makes sense to continue.

When it came to EHR vendors, the respondents felt that their motivations included a desire to maximize short-term revenue, with 41 percent reporting that this was a routine motivation and 28 percent that it was an occasional motivation. They also felt EHR vendors blocked information to improve the chances that providers would choose their platform over competing products, with 44 percent of respondents saying this was routine and 11 percent that it was occasional.

Meanwhile, they believed that hospitals and health systems, the most common motivation was to improve revenue by strengthening their competitive advantage, with 47 percent seeing this as routine and 30 percent occasional. Also, respondents said providers wanted to accommodate priorities other than data exchange, with 29 percent seeing this as routine and 31 percent occasional.

Solutions:

So what can be done about vendor and provider information blocking? There are a number of ways policymakers can get involved, but few have done so as of yet.

When given a choice of policy-based strategies, 67 percent said that making this practice illegal would be very effective. Meanwhile, respondents said that three strategies would be very or moderately effective. They included prohibiting gag clauses and encouraging public reporting and comparisons of vendors and their products (93 percent); requiring stronger demonstrations of product interoperability (92 percent) and national policies defining policies and standards for core aspects of information exchange.

Meanwhile, when it came to reducing information blocking by providers, respondents recommended that CMS roll out stronger incentives for care coordination and risk-based contracts (97 percent) and public reporting or other efforts shining a spotlight on provider business practices (93 providers).