Under the 21st Century Cures Act, the Office of the National Coordinator for Health IT has been tasked with developing a rule that will address the definition of information blocking, and that final product could have dire consequences—including financial penalties—for providers and vendors found to be guilty of the practice.
Speaking this week at the annual symposium of the American Medical Informatics Association in Washington, National Coordinator for HIT Donald Rucker, MD, said that ONC is currently drafting the rule, although he provided no specific details on a release date or a timeline for public comment.
The agency’s 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 misconduct.
“We’re working hard on language that we think will address that,” Rucker told the AMIA audience. “It has to be addressed at the provider level as well as the vendor level.” He added that the Cures Act has a provision providing the mechanism for stakeholders to report instances of information blocking to ONC, which then passes complaints to the OIG “for their judicial handling of it.”
According to the Cures Act, providers and vendors that have engaged in information blocking and have submitted a false attestation would be subject to civil monetary penalties not to exceed $1 million per violation.
Jeff Smith, AMIA’s vice president of public policy, told the conference that “the big task in front of ONC—and by extension the Office of the Inspector General at HHS—is trying to decide whether or not information is not flowing because of bad actors, business dynamics or if it’s technical.” Smith observed that “it will be incredibly interesting to see how a proposed rule, which we expect before the end of the year, starts to define this,” adding that “there are going to be a lot of stakeholders out there who will take offense as to how they define information blocking.”
Rucker described information blocking as a difficult issue confronting the healthcare industry. “You mix data complexity, technical challenges, with problematic economic behaviors—we’re working to try and provide some clarity on untangling those,” he said.
Nonetheless, some stakeholders say the problem with information blocking is more perception than reality, such as John Halamka, MD, chief information officer at Boston’s Beth Israel Deaconess Medical Center.
“I have yet to encounter a Chief Information Blocking Officer who wakes up (each morning) figuring out how not to exchange data,” says 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.”
However, Rucker contends that “there are clearly examples of information blocking—there’s no doubt that there are economic arrangements that have resulted in information blocking.” He added, “in an alternate universe, how many of those things would be there under some different payment situation? I think (that still) is to be determined.”
In April 2015, ONC sent a report to Congress on the problem of electronic health information blocking, concluding that some providers and vendors have created technical, legal and business barriers between their EHR systems and other systems to interfere with access to information.
Specifically, the agency charged that some EHR vendors are preventing the exchange of health information with competitors and that some providers engage in information blocking to control referrals and enhance their market dominance over competitors.
The Cures Act establishes authority for the HHS OIG to investigate claims of information blocking and assign penalties for practices found to be interfering with the lawful sharing of EHRs. It’s a mandate that James Cannatti, OIG’s senior counselor for health IT, is taking very seriously.
“We aim to leverage our new authorities to change behaviors in the industry,” Cannatti testified last week before the Senate health committee. “We believe this can best be accomplished through a combination of clear rules of the road for those who want to comply with the law and targeted enforcement against those who choose to break it.”
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