I don’t know about you, folks, but I read a lot of statements from trade groups which challenge a proposed law or regulatory action.
This time, the group is the EHRA (Electronic Health Record Association), a HIMSS-backed vehicle representing EHR vendor interests, and its comments target a new proposed rule which it says would cause some big problems. I’m somewhat skeptical of their claims. No, wait, actually I call shenanigans on the whole thing.
For background, the EHRA’s comments critique a filing by ONC in which the agency proposed rules for meeting its obligations under the 21st Century Cures Act. The ONC’s proposed rule addresses several hot-button issues, including the definition of “information blocking” and the requirement that EHR software vendors share their technology under compulsory licensing agreements which meet FRAND (fair, reasonable and non-discriminatory) standards.
The EHRA found much to object to in the proposal, which is not much of a surprise given that it’s more or less designed to break vendor control over health data exchange.
For example, its members are not exactly thrilled with the FRAND provisions, which would require the vendors to license their technology to anyone who asks. “A compulsory licensing model would have a chilling effect on innovation, by removing incentives for new or established companies to invest in emerging technologies or any significant effort to update existing ones,” the statement says.
Things could get grim if they pass as written, the statement warns. “The proposed rule risks disrupting natural market forces and creating an industry environment where companies are forced to do little more than focus on regulatory compliance, defense against information blocking claims, API creation and pursuit of patents,” the statement argues.
Another sore spot for vendors is ONC’s proposed methods for addressing information blocking, a problem which has affected the EHR business for decades.
Among the provisions targeting information blocking is a requirement that health IT developers offer their customers the ability to electronically export all of the electronic health information they produce and electronically manage in a computable format, which seems to give the vendors the willies. Also, they’re not fond of the way the proposal defines the freely licensable interoperability elements, arguing that the language involved is too broad.
What’s more, the EHRA members are apparently worried that the 24-month timeline for developing, testing, training and implementation across the vendors’ clients will be too short in some cases.
They also object to some language used throughout the proposed rule, such as “near real-time,” a slippery way to define the quality of patient health information. (While some of these arguments read like bombast, they’re right about this term, which is very important but also loosely defined.)
What did we learn here? Well, from where I stand it sounds like the EHRA members are going to have to be dragged kicking and screaming into offering more support for interoperability and data transfer. Having watched them wriggle out of most data sharing plans over the past several years, it seems to me that it’s appropriate to be out of patience.
These vendors have every reason to keep resisting, and I imagine they will for as long as possible, but they can only do that for so long, as the jig is up. After all, they engaged a whole heck of a lotta refusing to play ball where interoperability, standards and data sharing are concerned. We as consumers, providers, health insurers and such can’t indulge this anymore.
If its members are getting squeezed now, it’s hard for me to feel sorry for them. They pretty much brought this stuff on themselves.