Viewpoint: HIPAA, HITECH at fault for information blocking — Not EHR vendors

Two pieces of legislation — HIPAA and the Health IT for Economic and Clinical Health Act — that were meant to facilitate health information exchange have actually hampered the flow of data, wrote Niam Yaraghi, a fellow at Washington, D.C.-based Brookings Institution, in an op-ed for Health Affairs.

According to Mr. Yaraghi, people often blame EHR vendors for the lack of information sharing between healthcare providers. For example, eClinicalWorks entered into a recent agreement with the U.S. Department of Justice to pay $155 million to settle allegations it withheld information from federal officials. However, Mr. Yaraghi noted eClinicalWorks holds less than 10 percent of the EHR market share.

"It is not reasonable to blame only uncooperative EHR vendors and dishonest providers for the system's broad failure to effectively exchange information," he wrote. "How could stricter enforcement of regulations solve the problem when the overwhelming majority are already following those regulations?"

To answer this question, Mr. Yaraghi emphasized the need to revise aspects of HIPAA and HITECH. Under HIPAA, EHR vendors are prohibited from monetizing protected health information housed in their systems. Mr. Yaraghi said this restriction discourages EHR vendors from investing in the capabilities necessary to successfully exchange data.

"If it was legal to directly charge a data exchange fee, other innovators would compete to provide exchange services at a lower cost and higher quality," he wrote.

HITECH, too, poses issues for Mr. Yaraghi. Under HITECH, Congress ensured patients had a right to access their medical records. However, "declaring something as a right creates expectations, but it does little to help overcome specific obstacles," Mr. Yaraghi noted. "Congress' decision to declare free transmission of medical data as a patient's right does nothing" to facilitate their access to their records, he wrote.

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