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FTC Submits Comments on Proposed “Information Blocking” Rule in Effort to Protect Market Competition

On June 6, 2019, the Federal Trade Commission (“FTC”) submitted a comment letter regarding a proposed rule by the Department of Health and Human Services’ Office of the National Coordinator for Health Information Technology (“ONC”) on “information blocking.”

In an effort to encourage greater interoperability (and to implement certain provisions of the 21st Century Cures Act), ONC issued the proposed rule, which included proposed requirements for determining when blocking the flow of information from an electronic health record would be deemed “information blocking” and punishable by law. The proposed rule indicated that ONC had consulted with the FTC, and, in its comment letter, the FTC acknowledged that consultation, noting that its “goal in providing technical assistance has been to help ensure that the final rule does not inadvertently distort competition or inhibit conduct that is affirmatively procompetitive and consumer friendly.” 

To that end, the FTC’s comment letter included some additional suggestions for ONC to consider in order to “further refine” the descriptions of information blocking and activities that would be an exception to information blocking—and thereby encourage a competitive marketplace. Specifically, the FTC’s letter suggested that ONC:

  • consider additional and more fully developed examples of permissible conduct (e.g., conduct that would not be deemed information blocking);

  • more narrowly define “electronic health information” to include only the information that would be impacted by the requirements;

  • clarify when market pricing is appropriate, and provide additional leeway for market pricing and “certain ordinary refusals … to deal” under certain current pricing elements of the proposed rule; and

  • more narrowly define the term “developers of certified health information technology” so that only certified products come under the requirements of the rule.

It is unclear if or how ONC will incorporate the FTC’s comments into the final rule. 

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About this Author

John Steren, Epstein Becker Law Firm, Health Care Litigation Attorney

E. John Steren is a Member of the Firm in the Health Care & Life Sciences and Litigation & Business Disputes practices, in the Washington, DC, office of Epstein Becker Green. Mr. Steren devotes a significant portion of his practice to helping health care organizations manage the antitrust risks of joint ventures and other business arrangements. He also focuses his practice on other complex commercial and civil litigation matters.

Patricia M. Wagner, Epstein becker green, health care, life sciences

PATRICIA M. WAGNER is a Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the firm's Washington, DC, office. In 2014, Ms. Wagner was selected to the Washington DC Super Lawyers list in the area of Health Care.

Ms. Wagner's experience includes the following:

Advising clients on a variety of matters related to federal and state antitrust issues 

Representing clients in antitrust matters in front of the Federal Trade Commission and the United States Department of Justice, and state antitrust authorities 

Advising clients on issues related HIPAA Privacy and security

Advising clients on issues related to state licensure and regulatory requirements