In April of this year the Office of the National Coordinator presented a report to Congress around practices used to delay or prevent medical records exchange. A key element of the report was the identification and definition of a practice they termed “information blocking”.

ONC’s definition required three elements to be present.

  • Interference. A wide swath of practices ranging from openly disclosed policies that prohibit sharing information through to cultural practices within the health care instituion that make sharing costly or difficult.
  • Knowledge. The blocker must know that their conduct is “likely” to impede the flow of information.
  • No Reasonable Justification. This falls into the “you’ll know it when you see it category”. ONC has presented a very vague set of reasons that might be used as valid blocking rationales including the everpresent patient safety clause.

It’s fair to say the report hit a nerve. Epic and other EMR players reacted to the accusation that they were a major cause of blocking within the US by dropping all transaction fees – a welcome move.

These definitions are now taking form as legislation. In early May the “21st Century Cures Initiative” was approved by the Energy and Commerce Health Subcommittee. One key provision in this bill was civil and monetary penalties for providers, hospitals, healh information system providers and vendors who have engaged in information blocking practices per the ONC definition.

The problem with this bill is that it answers only half the problem.

Historically, the media has tended to target HCIT vendors as the primary cause of information blocking. The poster child for this criticism has been Epic who is seen as big, inflexible and unwilling to engage in standards efforts.

The reality is a bit more complicated.

Epic products can interoperate with other systems. Yes, you read that right. Epic offers the features and functions that are needed to work with Cerner, Allscripts, or any of a number of other EMR providers. More importantly, the integrations use standards based protocols such as CDA over XCA, XDR, or other protocols. It’s not perfect, but for most cases it’s good enough.

What’s missing from the equation is the business model for providers and hospitals to offer these services. It’s not enough to simply have standards, there needs to be a business motivator for true disruption to occur.

I have personally experienced situations where two hospitals across the street from each other won’t exchange records. This certainly doesn’t happen for technical reasons. The last time I checked EMR’s could still print a record that could be walked over, if there was a reason to do so.

Unfortunately, in fee for service medicine this reason doesn’t exist. Hospitals try to keep patients in network to achieve maximum business benefit. It’s just not in their interests to exchange this data.

The “Cures Initiative” provides for penalties for blocking. As such, it doesn’t address the fundamental problem of giving business advantage to people who seek to exchange records.

The law is basically a speed limit that enforces a minimum set of behaviours. Everyone will drive ten to fifteen miles over limit until they see a police officer. Then they’ll lock the brakes up and drive at the limit for a mile or so.

There needs to be some kind of carrot to incent hospitals and providers to exchange data.

Meaningful Use attempted this with some success but as incentives switch to fines its utility is fading.  An alternate approach might be to set an actual CMS code that pays hospitals in cash for each records exchange.  If targeted to high risk populations this might offer a chance to reduce cost as well as incent.

I don’t claim to have the answers, but I would like to see the debate swing from penalties to incentives. Without this I don’t see much chance of success.

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