Congress can’t solve the EHR interoperability problem: A response to Rep. Burgess’s draft bill

Rep. Mike Burgess (R-Texas) has released a draft bill entitled “ensuring interoperability of qualified electronic health records” in which interoperable (Electronic Health Records) EHRs are defined as those that do not block sending and receiving data to and from other EHRs and provide users with complete access to the captured medical data. The draft bill proposes that detailed methods to assess interoperability be defined by a “Charter Organization”. According to the draft bill, this Charter Organization shall consist of one member from each of the standard development organizations accredited by the American National Standards Institute and representatives that include healthcare providers, EHR vendors, and health insurers. To keep its certification after January 2018, an EHR vendor should comply with the definitions of the Charter Organization, publish API’s to enable data exchange with other EHRs and attest and demonstrate that it has not willfully interrupted data exchange with other EHRs. The draft bill suggests that the Inspector General of HHS shall have the authority to investigate both EHR vendors and medical providers with regards to claims that they have interrupted interoperability.

The proposed Charter Organization will not be successful

The language in the draft bill abandons the traditional approach of focusing on standards and instead is pushing for establishing methods and measures for assessing the level of interoperability in EHRs. However, it is not clear if the proposed charter organization would be able to come-up with such measures. As I have discussed before, some EHR vendors, along with many other medical providers are reluctant to become interoperable and exchange medical information. It is unclear how vendors and medical providers with diverse interests can work together and come-up with actionable measures of interoperability.

Decertification is not good policy

It is exciting that Congress has finally acknowledged that some medical providers do not want to share their patients records even if there are no technical barriers to interoperability. According to the draft bill, if it is determined that a medical provider has willingly refused to exchange health information with other medical providers, it should be subject to penalties under provisions of sections 1128, 1128A, and 1128B of the Social Security Act. While these penalties will probably prohibit the medical providers to intentionally withhold data, they may not apply to the EHR vendors. The threat of decertification is a bluff. ONC cannot decertify an EHR vendor that has more than 50 percent of the market share. In the best case scenario, after Congressional pressure, such vendors may enable data exchange, but will demand very high fees to overcome a plethora of technical barriers, especially if the EHR vendor has a monopoly in the market.

This is a complicated situation which I believe cannot be resolved through regulation. A better solution is to stop funding HITECH’s meaningful use incentives and avoid negotiating with the EHR vendors over the exchange fees. Without HITECH incentives, the market will force health IT vendors to develop sustainable revenue stream through reasonable exchange fees negotiated with the medical providers.