Athenahealth asks the OIG to permit a market for health data
Making a case for market-driven interoperability, Athenahealth asked the CMS to let physicians pay each other for exchanging patient data.

Healthcare lacks interoperability not because of technological problems but because of business limitations, according to the company, which asked the CMS to create exceptions to the Stark and Anti-Kickback fraud and abuse laws, which prohibit one provider from making certain referrals to another provider if the two have a financial relationship.

If the CMS made carve-outs to the laws, however, it could help establish a “true functioning market for the exchange of health information,” wrote Athenahealth’s director of government and regulatory affairs Greg Carey in a letter to the Office of Inspector General which requested information about ways to reform Anti-Kickback statute and Stark law.

Carey cited finance, insurance, and auto parts as industries that let their players pay for data. “It is our experience that information exchange occurs best when there is a business case and problem to solve,” Carey wrote.



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Exchanging information is costly, according to the company. “There is a cost associated with building and maintaining the technical infrastructure,” Carey told Modern Healthcare. “Our proposal would allow for the recipient of valuable data to compensate for the real cost incurred in curating and sending that data electronically.”

The notion is that this kind of business case would boost interoperability and help providers succeed in value-based payment programs.

But how that would look in practice remains to be seen. “I’ve seen no evidence that providers are hesitant to share clinical data because of a kickback concern,” said Michael Burger, senior consultant for Point of Care Partners. Athenahealth’s strategy could even backfire, he said. “By placing a cost on sharing of clinical data, what if the doctor doesn’t want to pay? Perhaps they would go without the data,” he said. “Or they may just say, ‘fax it to me.'”

The real business problem at hand, he added, is that health systems don’t want their patients going to outside providers.

In its own letter to the OIG, Cerner also emphasized the importance of information-sharing for certain payment models. The company asked the CMS and OIG to write into the EHR Safe Harbor that providers in Advanced Alternative Payment Models be allowed to donate and receive “electronic health record items and services,” including population health management and care coordination tools. Recipients could be, for example, skilled nursing facilities and long-term care hospitals.

By allowing the donation of EHRs and other items, the CMS would “spur availability and adoption of electronic health record technology,” which would in turn promote health data exchange, according to Cerner.

Similarly, the College of Healthcare Information Management Executives asked the OIG to allow providers to donate cybersecurity tools. “Some of our members…felt a waiver would allow them to aid smaller, affiliated hospitals in their area,” wrote Russell Branzell, CEO and president of the College of Healthcare Information Management Executives in a letter. “So much of our health system is increasingly integrated that providers with weaker cyber postures can pose threats to other providers.”

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