Electronic Health Records, Health Information Blocking, and Fair Competition Law

The concern that making patient health information and health records highly portable or transferable would also make it harder to retain patients has stalked the the subject of electronic health records for some time.  Of course, patient health record portability or transferability limitations designed  to stem patient loss or transfer was an issue long before EHRs as well. This was part of  the story behind the contact lens and eyeglass prescription consumer access rule. The question of who owned patient health record data lurked in disputes between providers and insurers as well, long before the rise of EHRs on any scale.  

Yes, those patients with open access to their medical records and access to an interoperable EHR have one crucial ingredient necessary to becoming mobile. In reality, not everything important to the health care provider patient relationship is found in a medical record and patients often feel tied to long-time providers by bonds of trust and familiarity, but other encounters may not be shaped as much by this.

A few years ago, what is now known as health care data blocking began to be discussed in the EHR world.  Providers (institutional as well as individual or group) may not, in fact, have desired full interoperability of EHRs across medical systems if it meant free transfer of patients across medical systems

EHRs are hard to develop and hard to integrate with existing health care privacy rules but there was a dawning recognition that some of this complexity may have been exacerbated or even manufactured by providers concerned about the business implications of what I call "un-tethered patients."  It is also worth noting that a huge industry has grown up around interoperability challenges,  self-interested in emphasizing the complexity and the difficulty of interoperability and exquisitely attuned to the financial risks of full interoperability.

But, the cat is out of the bag. Late last month, CMS proposed a rule that would require physicians accepting Medicare assignment and being paid under the Merit-Based Incentive Payment System (MBIPS) and those participating in the meaningful use program (both designed to promote and reward the use of interoperable EHRs between and among providers) to attest that they do not engage in health information blocking and to run the risk of a Federal False Claims Act violation if they falsely attest as part of billing Medicare. The actual requirement is an attestation that the providers have not "knowingly and willfully taken action.. to limit or restrict the … interoperability." This also includes an obligation to implement for interoperability and to make timely interoperability a priority. This means, under the proposed rule, that health care providers may be investigated or audited for this as well. This supplements a warning from the OIG that Anti-Kickback Statute safe harbors designed to promote EHRs were not intended to shelter health information blocking EHRs.

The tricky part is that  it is  difficult to apply a knowing and willful standard in such a complex and evolving area. Perhaps this is no more than a CMS shot across providers' bows indicating that they are wise to something.

We might do well to consider what  health care provider information blocking practices tell us about the business case for  genuinely interoperable EHRs; it is not compelling. This is the real takeaway:  participation in the MBIPS or meaningful use programs may not offer sufficient financial rewards to health care providers (particularly health care systems, such as acute care hospitals, that rely on brand loyalty).

If un-tethered patients are more mobile between and among systems, this may be a good thing for the price sensitive health care consumers among us.



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