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EHRA Calls for More Specificity in ONC Data Blocking Report

By Sara Heath

In April of this year, the Office of the National Coordinator for Health IT (ONC) released a publication addressing the issue of blocking health information exchange (HIE), and presenting various strategies to combat the issue.

In response to the ONC’s “Report on Health Information Blocking,” several representatives from the HIMSS EHR Association (EHRA) signed a letter stating that while EHRA agrees with many of the statements made by the ONC, there are several aspects of data blocking that need to be clarified.

Generally speaking, the EHRA agrees with the ONC’s definition of data blocking that includes criteria for how the entity was interfering with HIE, whether they knew they were data blocking, and the justification for data blocking. However, the provision stating that setting a fee for information exchange constitutes a financial inhibitor of HIE should be revised, EHRA maintains.

“Costs are not limited to fees that a developer might charge for interfaces and interoperability services, but also include the providers’ resources to deploy and maintain those interfaces. Costs must be evaluated in the context of the difficulty of developing and maintaining the interface, the number of potential users of that interface, the compliance with certification standards by the exchange partner, and the value gained from the data exchange,” EHRA states.

Additionally, there are several example instances of information blocking included in the ONC’s report that may be more ambiguous than the ONC says. In fact, in these example scenarios, data blocking is not taking place, EHRA maintains.

“When a vendor makes the certified capability available to a provider, but offers more advanced/innovative interoperability features for a fee, is it information blocking? When providers and vendors actively engage with reasonable and non-discriminatory practices, it is clear that no information blocking has occurred. However, establishing the contrapositive is challenging in a world of limited resources.”

It is clear that determining which situations do and do not constitute as data blocking is a challenging process. In order to manage that, EHRA provides several standards by which these potential data blocking situations should be assessed.

“Any assessment of potential information blocking must be fact-based, given a specific situation, and include the perspectives of all stakeholders before declaring that information blocking has, in fact, occurred,” EHRA states.

Furthermore, EHRA explains that the ONC did not address instances of unintended data blocking. These instances include regulatory practices which cause entities to inadvertently block data. Above anything else, EHRA believes that the issue at hand is how these regulatory practices and standards are crafted and how they need to be revised.

“These examples of unintended consequences of regulatory action indicate the need for great care in how we craft regulations, guidance, and best practices that allow for the necessary flexibility to avoid locking providers into specific solutions,” EHRA states.

EHRA also describes issues with creating enforcement policies. Because so much of the information regarding data blocking is still ambiguous, it is difficult for agencies to develop enforcement policies to penalize entities who do engage in data blocking.

“...the concept of ‘information blocking’ is still very heterogeneous, mixing perception, descriptive, and normative issues in ways that are not easily untangled. As a result, this concept and ‘label’ does not provide a good basis yet for policy actions or enforcement, as it could encompass a broad range of actions, few of which are likely to warrant civil or other penalties,” EHRA explains.

Generally speaking, EHRA does not believe that the ONC’s report is complete enough for legislation to be created around it. Although the report is an important start in resolving an ongoing solution, more clarification regarding how to define data blocking and how to police it is greatly needed.

“As ONC moves forward, clarity as to the focus of investigation and enforcement activities is necessary to help provide transparency in addressing the challenges with information blocking,” EHRA explains. “This helps address providers’ and vendors’ concerns and challenges as a better definition develops and we better understand how to avoid information blocking practices.”

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