The U.S. government has invested $28 billion over the last five years to improve healthcare by making the right health information available to the right people at the right time. Unfortunately, some healthcare providers and intermediaries are working against this goal by deliberately interfering with the exchange of patient data for their own economic advantage. By blocking the exchange of data, a healthcare provider can prevent patients from taking their business elsewhere and a technology vendor can prevent healthcare providers from using competing products. Shockingly, this is rarely illegal, and so the government is unable to do much about it, according to an April 2015 report from the Office of the National Coordinator for Health Information Technology (ONC). But now, newly proposed bipartisan legislation called the TRUST IT Act would give the government the authority it needs to investigate health information blocking and punish bad actors.
Information blocking occurs when a healthcare entity knowingly inhibits sharing of electronic health information without legitimate justification, such as privacy or security considerations. Healthcare entities such as electronic health record developers and hospital networks have considerable financial incentive and a wide variety of potential methods at their disposal to do so. For example, a healthcare network might restrict outside parties’ access to health information to limit referrals and protect its market share, or an electronic health record system vendor could charge prohibitively large fees for converting patient data from a proprietary data format to transfer it to a different vendor, even if the cost to covert the data is low, because it would lock customers into using their products exclusively.
ONC receives many complaints about information blocking but has little power to verify these allegations. For specific claims, it does not have access to evidence that could determine whether an entity has engaged in information blocking deliberately and without justification, such as information about pricing of a product or service in question, contract language, or other technical information. And while ONC can analyze the sharing capabilities of various providers and health systems, it is unable to determine when and why an entity is not exchanging information to the extent their capability allows. In certain cases, these practices can violate antitrust and consumer protection laws as well as rules prohibiting kickbacks or physician self-referrals, and ONC can assist the Federal Trade Commission and other law enforcement agencies in their investigations into these claims. However, these rules are not designed to protect against health information blocking as a whole, and as a result law enforcement agencies only investigate information blocking in the rare instances when it violates these other laws.
To address this gap in regulatory authority, Senators Bill Cassidy (R-LA) and Sheldon Whitehouse (D-RI) have introduced the TRUST IT Act to require health technology companies to attest that they do not engage in any form of information blocking before they can receive federal certification and qualify for federal incentives. Should anyone accuse a certified vendor of blocking health information, the HHS Inspector General would be authorized to investigate and punish offending entities up to $10,000 per violation.
Given the growing importance of patient data to delivering high-quality healthcare, Congress should recognize the urgent need to address the problem of information blocking and pass the TRUST IT Act to ensure patient outcomes are not sacrificed as healthcare providers and technology vendors fight for market share.
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