FTC: ONC rule could distort competition, impede innovation

The Federal Trade Commission has weighed in regarding a proposed rule on information blocking from the Office of the National Coordinator for Health IT.

In a letter to ONC, the FTC’s Office of Policy Planning, Bureau of Economics and Bureau of Competition recommends that the agency consider changes to ensure that its final rule “does not inadvertently distort competition or inhibit conduct that is affirmatively procompetitive and consumer friendly.”

ONC’s proposed rule seeks to implement the information blocking provisions of the 21st Century Cures Act and includes seven exceptions to the definition of information blocking—the act of intentionally interfering with the sharing of electronic health information.

However, the FTC contends that there are “additional areas where the information-blocking rule and accompanying exceptions could be further refined to help minimize unintended consequences.”

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Also See: EHRA says ONC’s proposed interoperability rule needs major revisions

Specifically, the FTC wants ONC to consider the following revisions to its proposed rule:

· Using other, more fully developed examples of permissible conduct to clarify genuine safe harbors for conduct that does not harm competition or consumer welfare.

· Adjusting the definition of “Electronic Health Information” so that it applies more narrowly to the information central to purposes of the authorizing statute, such as information needed for patient treatment and Health Information System interoperability.

· Clarifying when market pricing is not deemed information blocking, and providing additional leeway for market pricing and certain ordinary refusals (or failures) to deal under the “recovering costs reasonably incurred,” “responding to requests that are infeasible,” and the “licensing of interoperability elements on fair and reasonable terms” exceptions.

· Narrowing the proposed definition of “developers of certified Health Information Technology” to focus on those activities or practices that involve certified Health Information Technology.

“These suggestions may help clarify the final rule so that the exceptions do not inadvertently prohibit ‘activities that are innocuous, or even beneficial,’ ” states the FTC’s letter.

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