With great fanfare this week, the Department of Health and Human Services announced at the HMISS16 conference that major vendors, providers and industry groups have pledged to not block electronic health information—one of three commitments they made to improve health IT interoperability.

“Currently, electronic health information flows only in pockets of the healthcare system and business practices can inhibit data sharing,” HHS noted in a press release. “The commitments by health IT developers who provide electronic health records to the vast majority of the inpatient market, healthcare systems who serve patients in 46 states, and leading professional associations and stakeholder groups will help lead to a future where electronic health data is shared seamlessly, and is easily accessible when and where it matters most to providers and consumers.”

On the surface, the pledge by IT vendors that provide 90 percent of EHRs used by U.S. hospitals, as well as the country’s five largest private healthcare systems, is impressive. National Coordinator for Health IT Karen DeSalvo, MD, told reporters during a briefing at HIMSS16 that she expects to see progress starting in the fall, when ONC plans to “check in” with the IT companies who have made commitments to “make this data begin to move and to work more cooperatively together.”

Antonis Papantoniou

However, this is a voluntary, non-binding commitment that is dissoluble at the pleasure of the parties and which ultimately has no teeth. Current law does not directly prohibit information blocking, defined as knowingly and unreasonably interfering with the exchange of electronic health information, and provides no effective means to investigate and remedy it, according to ONC’s annual report to Congress, released February 29.

“Evidence and experience suggest that information blocking is occurring and may become even more prevalent as technical and other challenges of sharing electronic health information are reduced,” the ONC report states. “Inevitably, some market participants will regard this trend towards greater data liquidity as contrary to their individual business interests and will seek to retain control over electronic health information in ways that limit its exchange and use.”

Similarly, a 2015 ONC report to Congress on information blocking concluded that some vendors and providers have created technical, legal and business barriers between their EHR systems and other systems to interfere with access to health information. Nonetheless, both federal and state laws offer little protection against most kinds of information blocking.

While ONC says that it is aggressively pursuing all available administrative avenues to help target and address information blocking, including working with Congress, the bottom line is that it is a major obstacle to the goal of nationwide interoperability and requires the firm buy-in of all industry stakeholders. But, without the legal authority to enforce compliance, their commitment at this point—in the form of public declarations against information blocking—is purely at will.

Because information blocking is a behavioral issue, legislation is needed to curb the behavior of bad actors, thus discouraging those destructive actions that are interfering with data exchange to the detriment of patient care. To its credit, Connecticut recently became the first state to make electronic health information blocking illegal. Likewise, the federal government needs to follow suit with a national prohibition against such restrictions on information exchange.

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