Does Information Blocking Still Need Government Regulation?

As the industry waits for an information blocking rule, some health IT insiders believe the industry is essentially fixing the problem on its own.

Just a few years ago, the Office of the National Coordinator for Health IT (ONC) considered information blocking a major issue that needed to be addressed. Today, as we await an official policy that could effectively ban the practice, many are wondering if it’s even still a problem.

Over the last year, the industry has anticipated a new ONC rule meant to curb information blocking, but that has yet to come to fruition. The rule was submitted to the Office of Management and Budget for feedback and approval, designed to clarify what constitutes information blocking under the 21st Century Cures Act.

Originally, ONC was meant to have submitted the rule by April 2018, but it wasn’t actually submitted until September. There was a 90-day deadline for the review, which OMB missed. At the time of this writing, OMB employees have been furloughed by a government shutdown, meaning no end to this process is on the table at the moment.

But as the industry waits for a decision, some insiders believe that the nature of the current health IT landscape is essentially fixing the problem on its own.

Moot Point or Misunderstanding?

Clearly defining information blocking requires a comprehensive understanding of the systems in which it can occur. That can be difficult in a setting where connections between disparate systems are still being cultivated and adopted and are often built for specific use cases. Additionally, organizations are at different stages when it comes to adopting value-based payment structures. Therefore, it’s only natural that some information may not be shared between organizations who operate differently, have different data governance structures and technological capabilities.

This can lead to the question of whether information blocking is intentional. John Halamka, Chief Information Officer at Beth Israel Deaconess Medical Center in Boston, told MedPage Today in 2017 that he’d seen big strides in interoperability and was not convinced that malicious information blocking was an issue.

“I have seen incompetence in the industry — a lack of understanding of health information exchange protocols, but never intentional blocking,” he said. “Many government stakeholders believe that vendors wake up every morning thinking about ways to block data flows in and out of their EHRs. That’s completely untrue. Similarly, I have never seen a provider organization restrict data flows where there is a business case and an incentive to exchange data. I have seen interoperability made a lesser priority on yearly project plans when there is no business case and no economic benefit, but not intentional blocking.”

In the last year or so, interoperability has come a long way. From Carequality and CommonWell exchanging health information to the introduction of the U.S. Core Data for Interoperability data set, there is not only a roadmap for the secure exchange of healthcare information, but there is also a minimum bar to clear for organizations looking to avoid penalties.

In fact, Don Rucker, the National Coordinator for Health IT, recently recognized that since the passing of the 21st Century Cares Act in 2015, information blocking has been less of a problem, noting that ONC has seen major changes in behavior. But there is still a belief that business incentives exist for EHR vendors and healthcare providers to control health information in ways that limits its use and availability.

Do We Still Need the Rule?

In reality, the rule is not meant to address specific cases. ONC provides little evidence that information blocking is a major, common problem. However, the rule is meant to more clearly define an industry-wide understanding of what information blocking is and how it can be prevented. Essentially, they are attempting to ensure that it never does become a common problem

In a speech at last year’s ONC Annual Meeting, Rucker noted that the organization’s goal should be to have as much health information available as possible and that “information needs to be shared in a pro-competitive way. It cannot just be that one part of the economy or one sector has build sort of an isolated system – and that does happen,” he said.

Rucker went on to emphasize that the rules would contain mostly “common sense type things.”

Enforcement of the rules, however, is outside the ONC’s purview. That will fall to the Office of the Inspector General, which could penalize offenders as much as $1 million per violation of information blocking regulation.

When the rule is approved and what it will entail, no one knows. But when it arrives, industry stakeholders appear to be moving in the right direction to avoid serious penalty.

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