A recent report by the Office of the National Coordinator for Health Information Technology (ONC) found that some health care entities are purposefully hindering the exchange of electronic health information (referred to as “blocking”) for reasons driven by economic and market incentives. Although the federal government has thus far invested $28 billion to facilitate the adoption of interoperable Health IT, the report suggested that blocking is undermining this effort.

Health information blocking takes place when the user takes action that he knows or should know will prevent or materially discourage the exchange of electronic health information. This is distinct from efforts to safeguard the privacy and security of information. Rather, these activities are meant to “lock in” users or make exchange of information cost prohibitive, frustrating the goal of portability of patient information across providers and payers.

The report notes that most complaints of blocking arise from the conduct of IT developers, who, for example, may charge substantial fees for the exchange of information with competing technologies or services, in efforts to deter connectivity. The report found that some health care providers also engage in the practice. For example, the report suggested that some health care providers are refusing to release electronic protected health information, even when permitted by HIPAA, to control referrals and maintain “market dominance.”

Last week, the House Energy and Commerce Committee unanimously passed, H.R. 6, the 21st Century Cures Act (“Cures”), which included provisions designed to prevent health information blocking. The bill authorizes financial penalties and decertification for entities that engage in the practice.

However, the Cures provisions have been criticized by some provider groups, alleging that the enforcement mechanisms are duplicative and heavy-handed. For example, the American Hospital Association raised concern that the bill would sweep in reasonable business practices or customization of software systems and suggested that a more appropriate course would be to ask the Federal Trade Commission (“FTC”) to conduct a study of anti-competitive behavior by EHR vendors.

We will continue to monitor Health IT provisions in the Cures bill and post updates.