Connecticut law bans EHR-linked information blocking [Politico]

November 3, 2015

Independent medical groups are accusing big hospital-based networks — including Yale-New Haven Health System — of using their electronic health records as a tool to coerce practices to join them while punishing those who remain out of network.

These accusations led Connecticut in June to become the first state to make it illegal to use EHRs to block the flow of medical information — an issue that has become big in Congress recently, with the Senate HELP committee this month drafting a bill that prohibits data blocking.
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The state attorney general has reportedly opened investigations into Epic Systems and hospital networks in Connecticut, while HHS’ inspector general has issued a warning about unfair EHR-related practices.

Connecticut’s law, which took effect Oct. 1, was aimed at slowing the rapid consolidation of health care networks, a national trend in recent years.

Between 2011 and 2013, there were 285 hospital mergers, according to the American Hospital Association. That’s 101 more than in the prior three years. Hospital systems across the country have also been aggressively acquiring physician groups, in some cases sparking antitrust concerns.

Yale-New Haven Health System, Connecticut’s biggest health network, in 2013 accounted for 41 percent of the hospital profits in the state, while a second chain, Hartford Health, had 17 percent.

Independent physician practices complain that as the chains grow, it becomes harder for independents to control referrals for their patients, who end up getting expensive care because of additional fees hospital network members can charge.

The higher costs put the independents, who are sometimes responsible for their patients’ costs, at risk of penalties under new federal requirements aimed at improving care coordination and trimming waste.

Critics in Connecticut say that Epic — which controls more than half the state hospital EHR market in the state — is in effect collaborating with the hospital networks to pressure practices to sell out.

Information exchange is increasingly important to doctors seeking to comply with federal quality measures, which affect payments from Medicare. But in many states such as Connecticut, public health information exchange networks are weak.

Epic provides what is in effect a private information exchange in the state, a situation encouraged by federal safe harbor rules that permit hospital networks to subsidize up to 85 percent of the cost of EHR installation in an affiliated practice.

Such offers are a carrot to some practices, but others view them as sticks.

State Sen. Len Fasano, a Republican co-sponsor of the June law, said he heard from physicians struggling to access patient information recorded at large hospitals, notably Yale-New Haven.

“It was impossible for them to gain access to a patient’s full medical record unless they were associated with the hospital,” he said. “Independent doctors cannot properly care for their patients if they are denied access to full medical histories.”

Senate President Martin M. Looney, the Democratic co-sponsor, said Epic was being used “as both a coercive tool to shut out nonparticipating practices and, in some cases, force them to be sold to larger health care networks.”

Epic spokesman Eric Helsher said his firm played no part in the conditions leading to the complaints, which were “indicative of the changing landscape of health care due to the move to value-based payments and coordinated care.

“Physicians are aligning with health systems to reduce costs and improve patient outcomes,” he said. “Epic enables this alignment by providing deep integration around a single patient record, a robust patient portal to increase patient engagement, and population health management and analytics tools that drive coordinated care.”

But at an Epic sales event held at the University of Connecticut Hospital in September, the vendor’s staff suggested that an Epic subsidy was a good lure to get independents to sell out, because the alternative was meager information, according to two witnesses at the meeting.
Connecticut earlier spent about $10 million in a failed effort to build a statewide health information exchange. The June law authorizes the creation of a new statewide HIE, to provide an alternative to the Epic-based data exchange.

But Yale-New Haven officials believe putting more money into such an effort would be a waste.

“I don’t think HIEs are the solution,” said Yale Health System CIO Daniel Barchi, adding, “Epic has become the de facto HIE for the state.”
He acknowledged, “if you’re not on [the hospital’s EHR], it’s a challenge. Much as your stereo might not talk to your TV — there’s no guarantee of interoperability, and there’s no national standard.”

But, Barchi said, it is “incumbent on all of us to share data.” He described various relatively low-cost methods the Yale system was using to allow non-affiliated physicians to gain access to their patients’ charts in Epic.

“We’re doing pretty much everything we can to share information every way people want it,” he said. “But I understand there are physicians who want to remain independent, and being linked through the EHR is one less way they are independent.”

Some of the accusations are related less to information blocking than to the cost of having patients seen by physicians whose practices are owned by Yale or other chains. Federal law permits hospital systems to charge “facility fees” on top of other charges for medical care.
“If I have a patient with cancer, I can’t send them to anyone but a physician owned by Yale,” said an internist. “Their costs are three times higher than anywhere else and it gets tracked back to me.

“How can I participate in an accountable care organization if the specialists in my community are owned by a hospital and their costs are much higher?” said the internist — who said he feared retribution if quoted.

Other critics said the hospital chains used health IT to shut out other physicians.

“Large hospital systems’ EHRs only have drop-down menus for physicians within their system,” said Eileen Smith, director of Soundview Medical Associates in Norwalk. “This limits referrals to other doctors that may be the best choice clinically for the patient.”

Another physician said there was no way to meet the requirements of Stage 2 of CMS’s meaningful use program unless she was in an Epic system, because so little data exchange was occurring outside Epic.

But Epic’s Helsher said that for physicians who don’t want to align with a larger health system, “Epic customers lead the industry in standards-based EHR interoperability to share patient information.”

Yale offers an Epic installation and training to small practices that join its network for $5,000, with an additional $175/physician monthly fee, Barchi said. If a practice does not want Epic but wants to connect to the hospital, Yale will help build interfaces that enable discharge and admission summaries to pass between them. Again, the fee is about $5,000, he said.

On Oct. 6, HHS’s office of inspector-general said it was investigating the “misuse” of the safe harbor provisions of federal antikickback laws that allows hospital networks to subsidize EHR implementations like those Yale is doing with Epic.

The agency said it aimed to reduce “the likelihood that the safe harbor will be misused by donors to secure referrals.”

Connecticut’s June law makes information blocking an unfair trade practice with severe penalties. The law bases its definition on the ONC’s April information blocking report.

The state attorney general’s office is reportedly investigating complaints, but it refused to comment.

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