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Let’s Create a Market for Health Information Exchange

by Stephanie Zaremba, Director of Government and Regulatory Affairs

On October 3, the Health IT Initiative of the Bipartisan Policy Center released two complementary reports on the need to move forward with electronic health information exchange (HIE). We collaborated in the creation of the recommendations in both reports, and I represented athenahealth for a panel discussion of the findings.

The reports covered a lot of ground and here are some highlights:

  • A business case for health information sharing is now emerging, but athenahealth’s position is that there are still not enough great business models to spur exchange of information
  • The Department of Health & Human Services (HHS) should establish an Anti-Kickback Statute Safe Harbor and Stark Law Exception for payment associated with electronic transmission of data that accompanies a referral or order—and we could not agree more
  • Federal policy makers should develop and implement a national strategy for improving accuracy of matching patient identities with their health data
  • HHS should issue comprehensive and clear guidance on compliance with federal privacy and security laws for exchanging health information

On that last point, it’s critical that the solo doctor and the multi-state health system are on the same page about what HIPAA allows, without involving a cadre of lawyers.

How to Make HIE Work

You may recall that late last year, athenahealth secured a favorable opinion on HIE from the HHS Office of the Inspector General (OIG). This decision enabled our model for care coordination and it also paved the way for transaction-based payment HIE models. With the opinion came a better solution than the existing, inherently unsustainable HIE models that largely rely on government grant funding or sky-high subscription payments.

Of course we welcomed the decision but our one gripe is that it’s only binding on and only benefits us (and our clients), since we requested the opinion.

So how does this potential for competitive advantage turn into a bad thing? Well, if the exchange of health information is going to work as it should, we need WAY more people coming to this party—we really want competition. We need that OIG opinion to be turned into permanent, universally applied national policy so that brilliant innovators—like those in our More Disruption Please program—can develop business models for HIE with the assurance that their good ideas will not be deemed illegal under the Anti-Kickback Statute or Stark Laws.

The BPC reports have many great recommendations, all of which we are happy to support wholeheartedly. They focus on the need to increase public and private sector efforts to develop interoperability standards. We agree, but our view is that if national policy allows business models that put a direct financial incentive behind exchanging health information—information critical to coordinated care and high quality patient outcomes—interoperability standards will evolve quickly and naturally. People seem to agree on a way to do something, like exchange information, when there’s a financial incentive. Just ask the credit card industry!

We Need to Change the Paradigm, for Innovation

The idea that the Anti-Kickback Statute and Stark Laws would be inhibiting HIE is typically met with puzzled looks. After all, this is fairly uncharted territory. Additionally, like it or not, we still live mostly within the confines of a fee-for-service model. We think about health care as what happens in the exam room/laboratory/imaging center with a patient because this is how physicians get paid for their services. The Anti-Kickback Statute and Stark Laws are aimed at mitigating the risks that are associated with fee-for-service, where we pay for quantity and not quality.

And yet we know that successful health reform relies on shifting that paradigm and paying for quality—where care coordination is key—over quantity. The only problem is that as we make that shift, the fee-for-service policies make less sense. We need to look no further than the Accountable Care Organizations (ACOs) to prove this principle. The ACO regulations included a waiver of the Anti-Kickback Statute and the Stark Law, since those laws would make it impossible for ACOs to exist and share the risks and benefits of patient outcomes.

Shifting to a model where we pay for quality will require a similar loosening of the Anti-Kickback Statute and Stark Law so that real financial incentives can be created for care coordination and so the innovators can respond to those incentives.

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