Antitrust In The Brave New EMR World

Late last month, former Brigham and Women’s Hospital CEO Paul Levy made waves in the health IT world when he accused Epic of conspiring with Boston healthcare system Partners HealthCare.

In a post on his wryly-named Not Running a Hospital blog, Levy argues that Epic’s relationship with Partners raises antitrust concerns:

Here’s how it works.  Partners enters into a contract with Epic for the construction of an EHR for its facilities.  The two organizations go to the Partners-affiliated, but independent, medical practice groups and tell them that they have to install the Epic EHR–even if the EHR they have had for years is perfectly adequate for their purposes.  If a doctor’s practice asks why they can’t keep their old system, Epic makes clear that interoperability between its system and the practice’s legacy system is not feasible.  Meanwhile, to clinch the conversion, Partners also informs the local practices that failure to install the Epic system will foreclose those practices from participating in the favorable insurance contracting relationships it enjoys.  It is in this manner that the Epic-Partners actions box out the competition in this market.

In his article, Levy calls on Massachusetts Attorney General Maura Healey, and attorneys general of other states for that matter, to be on the lookout for similar deals between Epic and health systems elsewhere.

Interestingly, in other cases health systems accused of seeking excessive market power have used their Epic investment as a defense. For example, when its 2012 acquisition of Nampa, ID-based Saltzer Medical Group was challenged by the FTC, Boise health system St. Luke’s cited its $200M Epic system as a mitigating factor. Its lawyers asserted that St. Luke’s investment in effort was proof that the health system would be able to improve the region’s healthcare by better care coordination.

But the argument didn’t fly with the FTC, which didn’t believe that tying employed doctors to an EMR was needed to generate regional healthcare efficiencies. “Shared access to electronic medical records that St. Luke’s cited as a central benefit of the transaction can be achieved without an employment relationship or merger,” said Deborah Feinstein, director of the FTC’s Bureau of Competition at a speech given last year.

In my opinion, both Levy and Feinstein make excellent points. If Levy is right, it can easily be argued that Partners and Epic are engaging in questionable behavior, as it troubles at least this non-lawyer to see doctors strongarmed into using any particular EMR. And given that St. Luke’s was in the process of building a program to coordinate with unaffiliated physicians, it does seem that crying “we have Epic!” doesn’t address the problem.

But these are just bullet points. Overall, my sense is that neither state attorneys general nor the FTC and DoJ are sure how EMRs impact a health system’s market power, nor what constitutes anticompetitive behavior on the part of a vendor. I don’t know whether regulators don’t see EMR issues as a priority or are simply biding their time, but from my standpoint they are more than ripe for attack. What do you think?

About the author

Anne Zieger

Anne Zieger

Anne Zieger is a healthcare journalist who has written about the industry for 30 years. Her work has appeared in all of the leading healthcare industry publications, and she's served as editor in chief of several healthcare B2B sites.