The Office of the National Coordinator for Health IT, as directed by the 21st Century Cures Act, is currently developing a proposed rule—slated for release in the spring of 2018—that will address the definition of information blocking and could have potentially serious implications for bad actors.

“Networks often have issues of anti-competitive behavior in them,” observes National Coordinator for Health IT Donald Rucker, MD. “As we look at interoperability, there are a number of things we can do” to address information blocking, Rucker says.

Ultimately, ONC’s information blocking rule will be used by the Department of Health and Human Services’ Office of the Inspector General to guide its investigations and enforcement activities related to provider and vendor actions that serve to impede the electronic flow of data between healthcare organizations.

Under the Cures Act, the HHS OIG is given the authority to investigate claims of information blocking and assign financial penalties of as much as $1 million per violation for practices found to be interfering with the lawful sharing of electronic health records.

Also See: Pew, AMIA say budget cut could thwart ONC’s Cures Act goals

“The Cures Act, in essence, puts interoperability tools in that serve as some type of a judge—though not by any means the sole judge,” adds Rucker, who has been at the helm of ONC for eight months.

However, interoperability experts like John Halamka, MD, chief information officer at Boston’s Beth Israel Deaconess Medical Center and Micky Tripathi, president and CEO of the Massachusetts eHealth Collaborative, see information blocking as a myth that has come to be accepted as fact in healthcare.

“I have yet to encounter a Chief Information Blocking Officer, who wakes up (each morning) figuring out how not to exchange data,” comments Halamka. “Where there is a business case and there is appropriate policy, data flows. At Beth Israel Deaconess, I exchange 5,000 full medical records electronically every day.”

Similarly, Tripathi has concerns about the Cures Act’s “draconian” methods of dealing with “information blocking” which is defined by the law as practices that are “likely to interfere with, prevent, or materially discourage access, exchange, or use of electronic health information.” In particular, he worries that this stick approach could be potentially unfair and unjust depending on the way it is ultimately implemented.

“John and Micky have built up a very high-quality, functioning network,” responds Rucker. “If you’re John Halamka sitting in Boston using a network that they’ve worked on, the world works. In other places, I don’t think you can necessarily say that. It really is just local variation combined with a different perspective.”

According to Rucker, the ability for health information to interoperate overall has been “patchy” at best nationwide. Congress in the Cures Act looks at it from the perspective of a purchaser of health IT that has yet to see a return on the investment for taxpayers, Rucker explains. “We’ve spent tens of billions of dollars explicitly on electronic health records,” he adds. “We paid for interoperable records—why aren’t we getting it?”

At the same time, Rucker makes the case that EHRs are “in large part driven by reimbursement requirements that happened well before the existence of ONC.” He asks “in an alternate universe, how many of those things would be there under some different payment situation?”

Rucker says the Trump administration, including ONC and the Centers for Medicare and Medicaid Service, are “heavily interested in revisiting this sort of accrued stack of regulations.” He concludes that the “way that our healthcare system is paid has a profound misalignment of incentives” and “we’re in constant communication with CMS to sort through these issues.”

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