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ACHIEVING THE PROMISE OF HEALTH INFORMATION TECHNOLOGY: INFORMATION BLOCKING 

AND POTENTIAL SOLUTIONS 

HEARING 

OF THE

COMMITTEE ON HEALTH, EDUCATION, 

LABOR, AND PENSIONS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

ON

EXAMINING ACHIEVING THE PROMISE OF HEALTH INFORMATION 

TECHNOLOGY, FOCUSING ON INFORMATION BLOCKING AND POTENTIAL SOLUTIONS 

JULY 23, 2015 

Printed for the use of the Committee on Health, Education, Labor, and Pensions 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys/ 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS 

LAMAR ALEXANDER, Tennessee, Chairman 

MICHAEL B. ENZI, Wyoming 

RICHARD BURR, North Carolina 

JOHNNY ISAKSON, Georgia 

RAND PAUL, Kentucky 

SUSAN COLLINS, Maine 

LISA MURKOWSKI, Alaska 

MARK KIRK, Illinois 

TIM SCOTT, South Carolina 

ORRIN G. HATCH, Utah 

PAT ROBERTS, Kansas 

BILL CASSIDY, M.D., Louisiana 

PATTY MURRAY, Washington 

BARBARA A. MIKULSKI, Maryland 

BERNARD SANDERS (I), Vermont 

ROBERT P. CASEY, JR., Pennsylvania 

AL FRANKEN, Minnesota 

MICHAEL F. BENNET, Colorado 

SHELDON WHITEHOUSE, Rhode Island 

TAMMY BALDWIN, Wisconsin 

CHRISTOPHER S. MURPHY, Connecticut 

ELIZABETH WARREN, Massachusetts 

DAVID P. CLEARY, Republican Staff Director 

EVAN SCHATZ, Minority Staff Director 

JOHN RIGHTER, Minority Deputy Staff Director 

(II) 

C O N T E N T S 

STATEMENTS 

THURSDAY, JULY 23, 2015 

Page 

COMMITTEE MEMBERS

Alexander, Hon. Lamar, Chairman, Committee on Health, Education, Labor, 

and Pensions, opening statement ....................................................................... 1 

Murray, Hon. Patty, a U.S. Senator from the State of Washington ................... 3 

Cassidy, Hon. Bill, a U.S. Senator from the State of Louisiana .......................... 28 

Franken, Hon. Al, a U.S. Senator from the State of Minnesota .......................... 30 

Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming .................... 32 

Baldwin, Hon. Tammy, a U.S. Senator from the State of Wisconsin .................. 34 

Bennet, Hon. Michael F., a U.S. Senator from the State of Colorado ................. 36 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island ...... 38 

WITNESSES

Kendrick, David C., M.D., MPH, Chair, Department of Medical Informatics, 

University of Oklahoma, CEO, MyHealth Access Network, Tulsa, OK .......... 5 

Prepared statement .......................................................................................... 7 

Mirro, Michael J., M.D., FACC, FAHA, FACP, Past Chair, Medical 

Informatics Committee, American College of Cardiology, and Chief Academic/Research Officer, Parkview Mirro Center for Research and Innovation, Fort Wayne, IN ............................................................................................ 13 

Prepared statement .......................................................................................... 15 

Kibbe, David C., M.D., MBA, President and CEO, DirectTrust, Senior Adviser, American Academy of Family Physicians, Washington, DC .................. 17 

Prepared statement .......................................................................................... 19 

Black, Paul M., MBA, President, Chief Executive Officer and Director, 

Allscripts, Chicago, IL ......................................................................................... 22 

Prepared statement .......................................................................................... 23 

ADDITIONAL MATERIAL 

Statements, articles, publications, letters, etc.: 

American College of Cardiology, Heart House, Letter .................................. 50 

Response by David C. Kendrick, M.D., MPH, to questions of: 

Senator Alexander ..................................................................................... 53 

Senator Murray ......................................................................................... 54 

Senator Enzi .............................................................................................. 55 

Senator Casey ............................................................................................ 57 

Senator Baldwin ........................................................................................ 58 

Senator Cassidy ......................................................................................... 58 

(III) 

(1) 

ACHIEVING THE PROMISE OF HEALTH INFORMATION TECHNOLOGY: INFORMATION 

BLOCKING AND POTENTIAL SOLUTIONS 

THURSDAY, JULY 23, 2015 

U.S. SENATE, 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, 

Washington, DC. 

The committee met, pursuant to notice, at 10:05 a.m., in room 

SD–430, Dirksen Senate Office building, Hon. Lamar Alexander, 

chairman of the committee, presiding. 

Present: Senators Alexander, Enzi, Cassidy, Murray, Casey, 

Franken, Bennet, Whitehouse, and Baldwin. 

OPENING STATEMENT OF SENATOR ALEXANDER

The CHAIRMAN. Senator Murray will be here, but she has asked 

me to go ahead and start. Welcome. This is a hearing of the Committee on Health, Education, Labor, and Pensions. 

Senator Murray and I will each have an opening statement. 

Then we will have our witness testimony. We will ask you to summarize your remarks in 5 minutes. Then we will have questions. 

I need to leave at 10:30 a.m. for just a few minutes to go vote 

in an Appropriations hearing, and Senator Enzi will preside during 

that time. Then I will be right back. I don’t want to miss anything 

from our witnesses. I read your testimonies, very helpful. 

Today’s hearing is on information blocking. What does that 

mean? Here is an example. 

If I suddenly found myself at the Vanderbilt University Medical 

Center emergency room and the doctors there wanted to get my paperwork from the hospital and doctors that I usually use, information blocking means there is some obstacle getting in the way of 

my personal health information being sent to the Vanderbilt University emergency room. 

This could happen in a variety of ways. No. 1, could be that my 

usual hospital refuses to share my information. No. 2, the electronic systems at both hospitals don’t talk to each other. That could 

happen. No. 3, my usual hospital says it will charge Vanderbilt a 

huge fee to send my electronic records. No. 4, my usual hospital 

might say it can’t share them for privacy reasons. That could be 

our fault here in the Federal Government. No. 5, or my usual hospital won’t send them because they cite concerns about data security. 

2 

There could be a lot of reasons why I am sitting there in the 

Vanderbilt University emergency room, and the doctors can’t get 

my medical records. Since 2009, American taxpayers have spent $30 billion to encourage doctors in hospitals to install electronic health record systems 

through incentive payments to Medicare and Medicaid providers. 

One of the chief goals was to improve the electronic exchange of a 

patient’s health information between physicians’ offices and urgent 

care centers and hospitals and pharmacies. 

By encouraging these practitioners to adopt these systems and 

then encourage the manufacturers of the system to make them able 

to communicate with one another, we call that interoperability. 

That way, for example, I could have my physician send my records 

easily to a specialist who could have my entire medical history 

right in front of her before I even had my first appointment. No 

more printing of papers that I have to go to pick up and bring to 

my appointment, have added to a paper file, and then reentered 

into the specialist’s computer. 

The Federal Government even went so far as to certify certain 

systems so physicians and hospitals generally expected that the 

certified systems would enable them to transfer records. But interoperability, this communication among systems that is so critical, 

has been difficult to achieve. Information blocking is one obstacle 

to interoperability, and I am interested to hear today from the witnesses the extent to which it is a problem, the extent to which the 

Government may share the blame and the extent to which the Government can encourage interoperability. 

It could loosely be defined as intentionally interfering with access 

to my personal electronic health information. Here is what Reid 

Blackwelder, a family physician in Kingsport, TN, told the New 

York Times earlier this year, 

‘‘We have electronic records at our clinic. The hospital, which 

I can see from my window, has a separate system from a different vendor. The two don’t communicate. When I admit patients to the hospital, I have to print out my notes and send 

a copy to the hospital so they can be incorporated into the hospital’s electronic records.’’ 

Last year, I worked with the Appropriations Committee to acquire a report from the Office of the National Coordinator on information blocking. We received the report from Dr. DeSalvo and her 

team, who did a good job describing the various kinds of information blocking. The report described the sorts of information blocking and the scenarios I outlined earlier. 

It concluded that successful strategies to prevent information 

blocking will likely require congressional intervention, but this is 

not the only view of the practice. Some view information blocking 

as rational, competitive practices by for-profit businesses in a competitive healthcare industry. In other words, why would a hospital 

or physician network make it easy for a patient to go out of their 

network when that is against their business interest, these persons 

might say. 

Senator Murray and I have created working groups within our 

committee to deal with the various issues on electronic medical 

records. We have also created a good working relationship with 

3 

Secretary Burwell, Secretary of HHS. In fact, we had breakfast 

with her this morning and discussed this subject some. 

Let me just give my own view about this. Based upon what I 

have heard from doctors, hospitals, administrators, meaningful use 

Stage 1 helped encourage adoption. Meaningful use 2 was a mixed 

blessing. Meaningful use 3 is a whole other kettle of fish. 

The head of Mayo Clinic came to see me recently and said that Mayo, which is unique in some ways, is budgeted spending $1 billion over the next 4 years with 500 employees working on it in 

order to put in place the requirements of meaningful use Stage 3. 

Another well-respected hospital told me that meaningful use 1 

and 2 worked OK, but they were terrified by meaningful use 3. My 

instinct is to say to Secretary Burwell let us not go backward on 

electronic healthcare records, but let us not impose on physicians 

and hospitals a system that doesn’t work and which they spend 

most of their time dreading. 

Half the doctors are now paying penalties rather than participate 

in electronic medical records. We want something that physicians 

and hospitals buy into that help patients rather than something 

that they dread. 

One of the questions I will be interested in hearing the witnesses 

talk about is the extent to which we might want to slow down the 

implementation of Stage 3 of electronic healthcare records, not with 

the idea of backing up on it, but with the idea of saying let us get 

this right before we set 500 employees and $1 billion to work at 

the Mayo Clinic implementing a system that is not right and that 

we then have to change in 2 or 3 or 4 years, or that we impose 

on physicians and doctors such an onerous system that we get a 

huge backlash in 2 or 3 years and waste the effort that we have 

made today. 

I took a little longer than I normally would in saying that, but 

this is our fourth hearing on electronic health records. We have got 

another one scheduled for September and then another one in October. We intend to make whatever results a part of our medical 

innovation legislation, which we hope to finish by the end of the 

year. 

This is a serious subject, both for Senator Murray and for me 

and for Democratic and Republican members of the committee. We 

are looking for advice about the right thing to do. 

Thank you. 

Senator Murray. 

OPENING STATEMENT OF SENATOR MURRAY

Senator MURRAY. Thank you very much, Chairman Alexander. 

Thank you to all of our witnesses and colleagues who are here 

with us today. 

I believe strongly that when it comes to our country’s healthcare 

system, we need to keep moving forward, and that means building 

on the progress made so far to continue expanding coverage to our 

families, making healthcare more affordable, and improving the 

quality of care patients receive. 

This is, as the chairman said, our fourth hearing on strengthening our country’s health IT infrastructure, an issue that is especially important to two of those goals—improving the quality and 

4 

the affordability of care. When patients and providers have more 

convenient access to better health information, they are more 

equipped to make truly life-changing or even lifesaving decisions. 

Hospitals and providers have made substantial progress over the 

last few years toward expanding the use of health information 

technology. Today, for example, 6 out of 10 hospitals report having 

used electronic health records to coordinate with at least one provider outside their own organization. That is a 51 percent increase 

from just 7 years ago. 

We have taken some important initial steps forward, but we need 

to build on that progress and tackle a lot more challenges to make 

sure that patients can get better, more efficient care that reflects 

their medical histories. I am glad today that we are focusing on one 

challenge in particular, the practice of deliberate information blocking by some health IT organizations which threatens to get in the 

way of the progress we need to make to continue to improve our 

healthcare system. 

It is important to make clear that there are some legitimate reasons that a vendor might limit exchange of health information—patient privacy or unanticipated technological challenges. According 

to a recent report by the Office of National Coordinator for Health 

Information Technology, there is substantial evidence that some organizations are intentionally setting up barriers between their systems and other systems or overcharging or creating technical or 

legal barriers to providers who want to access information through 

the system they purchased, or both. 

To me, these efforts to knowingly interfere with access to patients’ health information is completely unacceptable. We have 

heard before in this committee how big a difference medical records 

can make for patients and their families, and because a strong national health IT system depends on different electronic healthcare 

record systems being able to talk to each other, we can’t afford to 

have bad actors who prioritize their bottom line over patients’ best 

interests and block information that hospitals, providers, and patients need to be able to share with one another. 

Instead, I am hopeful that members of this committee can work 

together on ideas that would allow physicians to vote with their 

feet when it comes to health IT and enable patients to download 

and provide their medical histories in a standard, easily transferable way. 

Today I am going to be very interested in hearing from our witnesses about these ideas and others, which would help move us toward even more significant progress to strengthen health IT and 

improve healthcare for the families and communities that we all 

serve. 

Thank you again to our witnesses. We look forward to your testimony today. 

Thank you, Mr. Chairman, for really focusing on a critical topic. 

The CHAIRMAN. Thanks, Senator Murray. 

First, we will hear from Dr. David Kendrick, chair of the Department of Medical Informatics at the University of Oklahoma and 

CEO of MyHealth Access Network in Tulsa. MyHealth Access Network connects more than 1,600 providers and patients through an 

innovative, community-based health information system. 

5 

Dr. Michael Mirro is our second witness. He is the chief academic 

and research officer at the Parkview Mirro Center for Research and 

Innovation in Fort Wayne, IN, and is a national leader in health 

information technology, serving as chair of the American College of 

Cardiology Health IT Committee for 5 years. 

Next we will hear from Dr. David Kibbe. He is the founding 

president and chief executive officer of DirectTrust, a nonprofit organization that helps and protects the rules and regulations of 

those in the nationwide Health Information Network. He is the 

senior adviser to the Alliance for Health IT Innovation at the 

American Academy of Family Physicians. 

And finally, Mr. Paul Black is here. He is president, chief executive officer, and director of Allscripts Healthcare Solutions, Inc., a 

leading electronic health record vendor. I am told that Allscripts is 

now able to work with all major electronic health record applications in today’s market. Mr. Black served as the EHR vendor 

Cerner’s chief operating officer prior to that. 

Welcome. We look forward to your testimony. If you would summarize your remarks in 5 minutes, then we will have a conversation. 

Dr. Kendrick, let us begin with you. 

STATEMENT OF DAVID C. KENDRICK, M.D., MPH, CHAIR, DEPARTMENT OF MEDICAL INFORMATICS, UNIVERSITY OF 

OKLAHOMA; CEO, MYHEALTH ACCESS NETWORK, TULSA, OK 

Dr. KENDRICK. All right. Thank you. 

Good morning, Chairman Alexander, Ranking Member Murray, 

and distinguished members of the committee. 

In previous hearings, committee members have asked how do you 

define interoperability? From my perspective, every patient deserves to have their complete longitudinal medical record securely 

available wherever and whenever decisions are made about their 

health. 

Wherever includes places like the doctor’s office or the emergency 

room, between doctor visits when medications are refilled, as well 

as at home with the patient or caregiver. I think this definition is 

helpful because it reminds us that the primary objective of interoperability is to better serve the patient with high-quality, safe, 

and cost-effective care. 

We have taken these principles to heart in Oklahoma and have 

leveraged our ONC Beacon Community Award to create statewide 

interoperability. MyHealth is a nonprofit that serves as an entity 

most trusted by payers and providers to measure quality, cost, and 

value in support of new healthcare payment and delivery models. 

This unique, trusted, third-party arrangement has accelerated 

the adoption of value-based payment models in Oklahoma, and 

interoperability has enabled providers to succeed in these new care 

delivery models. For example, MyHealth serves as the convening 

organization and data aggregator for CMMI’s Comprehensive Primary Care Initiative demonstration project in which 265 Oklahoma 

primary care providers reduced Medicare costs by 7 percent in 1 

year. 

These accomplishments have been hard fought, requiring more 

than 5 years and $15 million to produce. By far, the most signifiVerDate Nov 24 2008 16:06 Aug 09, 2017 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\DOCS\95737.TXT CAROL
6 

cant barrier to success has been liberating accurate patient data 

from practices, hospitals, and other organizations. Generally, we 

think of data blocking as the intentional interruption or prevention 

of interoperability by one of two parties, the provider or the provider’s EHR vendor. 

Provider data blocking may have been an important challenge 

early in the development of MyHealth, but it has quickly receded 

as value-based payment models take hold. Thus, the biggest challenge we face is liberating patient data from EHR systems to make 

it interoperable. 

While many EHR vendors work well with our customers and 

with our organization to establish interoperability, we still have so 

many specific experiences with inappropriate data blocking and 

substandard data quality that we have created a nomenclature to 

classify six common types. Below, we describe one or more real examples of each type. 

Type 1 is the golden rule. By far, the most common barrier to 

interoperability is the high price charged by vendors to implement 

and maintain interfaces, which commonly exceeds $10,000, and it 

is not uncommon to see charges of $30,000 to $40,000 per practice, 

regardless of practice size, to do something that meaningful use 

supposedly required. 

Type 2 we call the Hotel California. There is a component of the 

EHR certification program called data portability that is intended 

to help providers change EHR vendors if they like. Unfortunately, 

few vendors appear to offer this functionality as intended, and so 

we say that the customers of these vendors have a Hotel California 

problem. They can check out other EHR products anytime they 

like, but their data can never leave. 

Type 3 is inexplicable. We recently were told by a large EHR 

vendor’s project manager that, ‘‘We just don’t do CCDs,’’ which is 

the patient summary of care document, ‘‘because they’re not in our 

DNA.’’ 

The CCD is required of all certified EHRs, and no amount of arguing thus far has been able to convince this project manager that 

his vendor could do this. 

Type 4 we call garbage in and garbage out, and this simply relates to the quality of the data we are getting in these standard 

CCDA files. We are finding uncoded lab results, uncoded medications. When the data is not coded properly, it can’t be duplicated 

and essentially becomes useless for other providers to use in care. 

Type 5 we call EHR at the center of the universe. Increasingly, 

we are hearing from large health systems that their EHR vendor 

provides all of the interoperability that they need without the community HIE. This is because the vendor provides convenient connections to other systems that use their product. 

However, providers in critical services using other EHR products 

are excluded, leaving a big hole in the interoperability of the community and the health system. Most concerning about this mistaken belief among health system leaders is that it subverts interoperability at the community and State level, creating instead a 

corporate EHR network for interoperability which is not subject to 

the trust arrangements and policies of the community. 

7 

Type 6 we call the bait and hidden switch. In this type of data 

blocking, the vendor achieves certification with one feature set and 

then either hides or eliminates functionality when the EHR is actually deployed in practice. By filing a complaint with ONC’s surveillance program, we recently discovered that one of the Nation’s largest ambulatory EHR vendors had actually hidden functionality that 

they used to get certified and were instead charging tens of thousands of dollars to practices for an additional product to do the 

same thing. 

We have since used this knowledge to connect many practices at 

no cost. Unfortunately, the vendor in question still has not been 

compelled to communicate this information to all of their customers. 

We have also observed a certain fear among providers that filing 

complaints with ONC against their vendor will produce a backlash 

in the form of poor service or increased fees. Most of the time our 

participants ask that we, the health information exchange, file the 

complaint to preserve their relationships with their vendors. 

My recommendations to improve the flow of data for interoperability are, No. 1, expand HIT certification to test interoperability 

in the field. Don’t just test it on the bench, but also test it once 

it is deployed to prove that it works. 

No. 2, further emphasize the ONC certification surveillance program. No policy has ever been successful without at least the 

threat of enforcement. 

No. 3, consider implementation of a lemon law for EHRs to protect providers and other organizations stuck in long-term contracts 

with vendors who do not perform. 

No. 4, require certain clauses of EHR contracts to be transparent, especially the interoperability clauses that can hide these 

data blocking issues. 

No. 5, continue to expand value-based payment models, which inherently encourage interoperability among providers. 

And No. 6, although it may sound controversial coming from a 

board-certified medical informaticist, we don’t need any new standards right now. We need to make the ones we have work. We 

should continue research and development, but please don’t layer 

in new standards. 

HITECH called upon ONC to establish the governance for the 

nationwide Health Information Network, but perceived limitations 

on ONC’s authority have left this entire segment of our critical national infrastructure without governance. This vacuum is being 

filled by various consortia and collaborations of vendors and large 

provider organizations. 

ONC’s authority should be made clear in three groups. 

The CHAIRMAN. If you could wind it up, Dr. Kendrick. 

Dr. KENDRICK. Sure. Those who receive care, provide care, and 

pay for care should be organized into governance. 

[The prepared statement of Dr. Kendrick follows:] 

PREPARED STATEMENT OF DAVID C. KENDRICK, M.D., MPH 

Good morning, Chairman Alexander, Ranking Member Murray, and distinguished 

members of the committee. I am pleased to offer you my testimony on a topic that 

has consumed nearly all of my professional life—the modernization of our 

8 

healthcare delivery system, and lately, the information blocking that is getting in 

the way of progress. 

I reviewed the previous healthcare IT testimony to this committee and noted that 

a very important question has consistently been asked by committee members: 

‘‘How do you define interoperability?’’ 

My definition of interoperability is that every patient deserves to have their complete, longitudinal medical record available wherever and whenever decisions are 

made about their health. ‘‘Wherever’’ includes places like the doctor’s office or the 

emergency room, between doctor visits when medications are refilled, as well as at 

home with the patient or caregiver and on smartphone when the patient travels. 

I think this definition is helpful because it reminds us that the primary objective 

of interoperability is to better serve the patient. It also provides us with a convenient test for any health IT implementation or policy. ‘‘Does my EHR ensure that my 

patients have their records from my clinic available no matter where they seek 

care?’’ is a fundamental question all doctors should ask about their systems. 

Another important test is ensuring that each patient, and population, is receiving 

high value care—the primary ingredient required for successful value-based payment models. In order to do this, quality and cost measures must contemplate ALL 

of the relevant data on each patient. Since the average patient sees more than 3 

different doctors each year, and the average Medicare patient sees 7, this almost 

always means aggregating data from multiple doctors and hospitals in order to get 

an accurate picture of individual and population health. To do otherwise would be 

like assessing the record of a football team based only on the performance of the 

left tackle. 

We in Oklahoma have been hard at work transforming our healthcare delivery 

system. MyHealth Access Network is a non-profit health information exchange organization serving more than 4 million patients and connecting 275 organizations, including doctors, hospitals, pharmacies, tribal health systems, payers, employers, 

home health, hospice, long term care, State and local agencies, and many others. 

MyHealth received a Beacon Community Award from ONC in 2010 which encouraged and enabled us to build the Oklahoma approach to interoperability. 

MyHealth has established effective health information exchange with dozens of 

EHR’s, administrative systems, and payer claims systems, and consolidates this 

data into a single record for each patient to ensure that their complete medical 

record is available wherever, and whenever needed for care. In addition, MyHealth 

serves as the entity most trusted by payers and providers to measure quality, cost, 

and value in support of new healthcare payment and delivery models. This unique 

Trusted Third Party arrangement has accelerated the adoption of value-based payment models in Oklahoma, and has enabled providers to succeed in these new care 

delivery models. 

For example, under the Beacon program, MyHealth demonstrated significant improvements in critical ACO success measures: preventable admissions and ER visits 

for asthma, COPD, and congestive heart failure. MyHealth technology has been 

shown to improve care transitions by reducing wait times for access to specialty care 

by 2/3 and significantly reducing the total cost of care for transitioned patients in 

the Medicaid population. 

MyHealth has also served as the Convening organization and data aggregator for 

the Oklahoma implementation of a CMMI pilot project called the Comprehensive 

Primary Care initiative (CPC), which includes local commercial payers as well as 

Medicare and Medicaid. These multiple payers have partnered to implement a 

value-based payment and practice transformation program in primary care practices. In the first year of the program, Oklahoma’s 65 CPC practices reduced Medicare costs by 7 percent, prompting Secretary Burwell to seek commentary on the 

potential expansion and permanent implementation of the CPC model in the latest 

CMS Physician Fee Schedule. 

These accomplishments have been hard fought, requiring more than 5 years and 

$15M to produce. By far, the most significant barrier to success has been liberating 

accurate patient data from practices, hospitals and other organizations. 

Generally, we think of data blocking as the intentional interruption or prevention 

of interoperability by one of two parties: the Provider or the Provider’s EHR vendor. 

Provider data blocking may have been an important challenge early in the development of MyHealth but it has quickly receded as value-based payment models take 

hold. The Comprehensive Primary Care initiative, the rise of several ACO’s, and important moves by commercial payers such as Blue Cross and Blue Shield have all 

combined to convince providers in Oklahoma that value-based payment models are 

the present and the future. CMS further endorsed this thinking with their announcement in January. As providers recognize that their success in these new models of care and payment is dependent on having their patients’ comprehensive data 

9 

available wherever it is needed for decisionmaking (even if that is a competing organization), the provider-driven barriers to interoperability tend to melt away. 

Thus, the biggest challenge we face is helping our willing provider members to 

liberate the patient data from their EHR systems to make it interoperable. We have 

so many specific experiences with inappropriate data blocking and substandard data 

quality that we have created a nomenclature to classify the six common types. We 

have had some success in solving these issues, but many remain unresolved. Below 

we describe each type of data blocking in the context of a real event. 

Before reviewing the examples, I would like to point out three things. First, many 

EHR vendors work well with their customers and with our organization to establish 

interoperability. Second, until recently, we have been left with few options to address most data blocking issues. Recently, we have become active users of the ONC 

Certified EHR Technology Surveillance program, filing complaints after we have exhausted all other efforts to work with the vendor and the provider to implement 

interoperability. Finally, the cases below are examples of the types of issues we have 

experienced, but these issues arise in most other communities as well. 

TYPE 1: THE GOLDEN RULE

By far the most common barrier to interoperability, exorbitant interface and 

maintenance costs cause many small practices and hospitals (and some large ones) 

to forego participation in HIE or at least providing data to the HIE. The EHR Certification requirements do not set parameters for the fees that vendors may charge 

for interoperability, so this is a very common barrier. In our experience, typical, acceptable interface costs are below $2,500 per practice. However, several well-known vendors charge $10,000 or more per practice, regardless of practice size, and some charge more than $30,000 to $40,000, which for many 

practices in Oklahoma amounts to $3–$5 per patient seen for an entire year. 

Other vendors charge per patient. One vendor in particular has, until recently, charged more than $2.00 per patient per year, which added nearly $1M in cost to 

large health systems and prompted an avoidance of the standard interface approaches with that vendor. Asking a CFO to pay $1M extra just to provide competitors with access to see their patient data seems to be a guaranteed way to keep the 

health system to participate in HIE—and this is exactly the effect that this perpatient per-year fee model has had. 

When we question vendors about the exorbitant cost of interfaces, we are often 

told they are technologically complex and labor-intensive. While this may be true, 

the complexity is usually a result of the vendor’s own decisions about architecture 

and their implementation of the meaningful use interoperability requirements. In 

addition, it is difficult to recommend to our participating providers that they pay 

these fees when a number of well-known EHR vendors have been extracting the 

data from their customer’s practices, de-identifying it, and selling it for years. Certainly this process is more technologically complex than making a standards-based 

interface for clinical data. 

TYPE 2: THE ‘‘HOTEL CALIFORNIA’’ 

There is a component of the EHR Certification program called ‘‘data portability’’ 

that is intended to help providers to change EHR vendors if they like. Vendors are 

required to enable providers to create a batch export of their patient records in a 

standardized format. It is also a very helpful capability for interoperability. Unfortunately, few vendors appear to offer this functionality as intended, and so we say 

that the customers of these Vendors have a Hotel California problem—they can 

check out other EHR products any time they like, but their data can never leave. 

MyHealth has filed complaints about this issue and our initial complaints have 

been found to have merit by ONC and the ACB, but no specific timelines have been 

provided. Thus, doctors using these Vendors’ EHR products are facing pressure to 

meet Meaningful Use by the end of the year without a clear idea of whether, or 

when, the product will enable them to do so. 

TYPE 3: THE INEXPLICABLE

In some cases, the reasons for data blocking are not clear, and do not seem to 

be linked to any specific technology limitation or business driver. Often, given time, 

the real motivation behind the data blocking will become clear and it usually resolves to a vendor-or provider-driven decision about cost. 

For example, during the install of a major comprehensive EHR product in one of 

our largest health systems, we were told by the Vendor’s project manager that ‘‘We 

don’t do CCD’s, they’re just not in our DNA’’. We pointed out that their product was 

Meaningful Use certified, implying their ability to produce a CCD (a Patient SumVerDate Nov 24 2008 16:06 Aug 09, 2017 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6621 S:\DOCS\95737.TXT CAROL
10 

mary of Care file), and, in any case, this was their customer’s request. Despite an 

hour of questioning, the project manager remained unfazed and simply continued 

to repeat ‘‘we don’t do CCD’s, they’re not in our DNA’’. 

This issue remains today, despite the fact that we now get CCD’s from other instances of this vendor’s product. We were forced to build and maintain five different 

HL–7 (an older, less robust protocol) feeds to replace the missing CCD. The missing 

data from this health system means that their patients are at higher risk of Adverse 

Drug Events, duplicated testing and imaging (and radiation exposure). 

TYPE 4: GARBAGE IN, GARBAGE OUT

All certified EHR’s are required to produce Patient Care Summary records according to a common format, but many of them fail to include the proper structure, clinical content, or standard codes. We have never seen a completely correct Patient 

Care Summary despite processing millions of them. 

Poor data standardization and quality prevents data from being combined with 

other records on the patient, creating a messy and often inaccurate chart riddled 

with duplications. Further, this prevents the calculation of metrics and care gaps, 

as well as quality measures, compromising the safety and accuracy of clinical decision support, and undermining the success of value-based payment models. 

TYPE 5: EHR AT THE CENTER OF THE UNIVERSE

Increasingly, we are hearing from large health systems using certain EHR systems that their EHR vendor provides all of the interoperable information they need. 

These vendors have done an excellent job of implementing interoperability with 

other health systems using their EHR products. However, this interoperability does 

not extend beyond the specific vendor’s customers, excluding independent providers 

and small hospitals, pharmacists, ancillary care services and long term care, etc.— 

all of which play a critical role in the health of patients. 

Most concerning about this belief is that it subverts interoperability at the community and State level, creating instead a corporate EHR network for interoperability, which is not subject to the trust arrangements and policies of the community. 

TYPE 6: THE ‘‘BAIT AND HIDDEN SWITCH’’ 

In this type of data blocking the vendor achieves certification with one feature set 

and then either hides or eliminates functionality when the EHR is deployed in a 

practice or hospital. 

We pursued interoperability for nearly 4 years with one of the Nation’s largest 

ambulatory EHR vendors, but were told repeatedly that we must purchase their 

proprietary ‘‘HUB’’ product. In addition to a base cost of $40,000, the HUB carries 

an additional monthly service fee of $50–$100 for every provider in every practice— 

more than doubling the cost of HIE services. 

Recognizing that 2014 EHR Certification required them to produce the Patient 

Care Summary files for interoperability, we filed a complaint with ONC, which was 

forwarded to the Accredited Certifying Body (ACB) for the Vendor, who apparently 

forwarded the message to the Vendor. 

Almost immediately we received an email from the Vendor indicating that they 

would no longer work directly with our HIE. We were quite surprised and concerned, but fortunately, within a few hours, we received an email from an executive 

with the Vendor. Realizing that the certification challenge was credible, the executive offered some new information, unknown to any other practice or HIE in the 

country, as far as we can tell. It turns out that instead of requiring the purchase 

and implementation of the HUB product, the vendor could make a simple ‘‘configuration’’ change to enable the data to flow out of the system. We immediately requested that the configuration change be made in our participating practices, and 

by 10 a.m. the next day we had data flowing from three practices, at no additional 

cost to the providers. 

This EHR Vendor product had passed certification testing with the configuration 

switch turned on, but turns it off by default for every installation of the product. 

Until we filed this challenge, no amount of direct questioning of the Vendor support, 

sales, and implementation staff revealed the existence of this ‘‘switch’’. 

The follow-on story is also informative. This feels to us like an important product 

defect that would be communicated to customers in any other industry. Since most 

of these installations were funded with tax-payer dollars, it would seem that the 

commitment to transparency would be even greater. Unfortunately, the Vendor does 

not appear to be communicating this information to their customers, and continues 

to offer the expensive HUB as the only way to get data out of their EHR system. 

11 

So, we have shouldered the burden of informing the public and relevant stakeholders, including our HIE colleagues. We have assisted several States in making 

this configuration switch work for them, and we are happy to do it—but we continue 

to ask why a formal and transparent communication process is not being required. 

Of particular concern to me has been the clear reluctance on the part of the practices to file or participate in the filing of complaints against their EHR vendors. Several times, affected practices have requested MyHealth to file the formal complaints 

on their behalf, but expressed fear that filing directly could prompt retribution from 

the EHR vendor. I have been surprised to find intimidation of providers by their 

vendors, whether real or perceived, playing such a significant role in the data blocking issue. 

RECOMMENDATIONS

I have several suggestions to address and prevent the issue of data blocking. 

1. The HIT Certification program is the strongest lever available to ensure Vendor 

alignment with success of the Nation in achieving the optimization of health and 

quality of life for all Americans. I recommend a tuning of the initial certification 

and an expansion of the ongoing surveillance program. 

a. Initial and ongoing certification recommendations: 

i. Current testing: EHR’s are currently certified based on testing in an 

ideal, laboratory environment. 

ii. Expanded Certification Testing: We recommend that certified EHR’s 

have their interoperability functions tested in the field with each deployment of their product in order to maintain certification. In this 

way, the product can be proven to be interoperable before the ‘‘keys’’ 

are handed over to the provider. This would specifically address Information Blocking Types 2, 3, 4, and 5 above. We are happy to expand 

on ways this can be accomplished cost-effectively as requested. 

iii. Meaningful Use 3 Proposed requirements: It has been proposed that 

Certified EHR’s must enable providers to choose standard clinical documents and schedule them for automated delivery to specific locations. 

Preservation of this requirement is critical to achieving broad interoperability. 

b. Certification Surveillance program recommendations: As noted above, most 

progress on addressing the data blocking issue has come through successful 

use of ONC’s Certified Health IT Surveillance program. We propose expansion and amendment of this program in the following ways: 

i. More prominent role: The ONC Surveillance program can be very important in solving these issues, but it must become a more prominent component of the Certification program to have maximal impact. Doctors and hospitals need to know how and when to use it, and Vendors need to know what 

to expect from it as well. 

ii. Increased Transparency: 

1. When a complaint is found to have merit, and changes have been requested of a specific vendor, the customers deserve to know the details and timing for a solution. Posting the adjudicated issues and 

timelines will enable providers to plan and increase trust among the 

provider community. 

2. An annual Health IT Surveillance report has been produced by the 

Accredited Certifying Bodies, but the report is only accessible via a 

Freedom of Information Act request—creating an additional barrier 

to transparency and therefore trust. 

iii. Whistle-blower protections: As described above, many providers, especially small clinics and hospitals, are concerned about backlash from 

their vendors that filing a complaint may generate. Whether these fears 

are warranted or not, it’s important to create an environment where 

these providers can feel safe in airing their concerns. 

iv. Independence from Conflict of Interest: Currently, the Accredited Certification Bodies, who are responsible for the Certification program, are 

also responsible for executing the Surveillance program. This could be 

perceived to be subject to conflict of interest, since the ACB generates 

nearly all its revenue from the Vendors that it certifies. For example, 

an ACB perceived to be overly strict by Vendors could lose its Certification business. 

12 

c. Lemon law for EHRs: On more than one occasion in our community, providers 

have invested heavily in an EHR product, only to discover that it does not 

meet their needs. One small, financially strapped hospital in Oklahoma recently fired their EHR vendor when it became clear that the Vendor would 

not meet 2014 EHR Certification—which would prevent the hospital from 

meeting its Meaningful Use obligation. Unfortunately, the EHR vendor sued 

the hospital for breach of contract. 

An appropriately crafted Lemon Law could help to prevent these kinds of 

issues. 

d. Transparency in contracting: The contents of EHR vendor contracts are 

among the best kept secrets in America, and the signatories are often bound 

by strict non-disclosure agreements. Certain elements of these contracts, and 

specifically those pertaining to interoperability, should be made transparent 

to customers and other healthcare stakeholders. 

2. Payment model incentive alignments provide the strongest incentive for providers and hospitals to support and enable interoperability. In particular, the expansion of value-based payment models are prompting providers to look beyond the 

walls of their organization for the patient information they need. 

a. In the short term, a process measure for interoperability should be employed 

to help providers and other stakeholders gauge their progress in achieving 

appropriate levels of interoperability. We have defined several measures that 

could be of use and would be happy to share them. 

b. CMS and other Federal partners such as the DoD, VA, and HRSA should 

begin to place more value on Clinical Quality measures derived from a comprehensive record of the care each patient receives, rather than from a single 

EHR or site of care. This will further encourage provider participation in 

meaningful health information exchange, and will significantly improve the 

accuracy of the quality measures being reported. In Oklahoma, the commercial payers and Medicaid have already recognized the importance of this approach to value measurement and are proceeding to implement it. 

c. Support the development of regional data aggregation such as HIE’s and the 

implementation of whole-patient quality reporting. These are important infrastructure elements that are needed to support the kinds of measurement described above for value-based payment programs, and also to ensure that patients get comprehensive, safe care no matter where they seek it. 

3. Standards: It may be controversial for me to say this as a Board Certified Medical Informaticist, but we have plenty of standards—we need to focus on correctly 

implementing the standards we have right now and monitoring their performance. 

R&D on new standards should continue, but they should undergo rigorous testing 

before becoming a part of the certification or meaningful use requirements. The 

ONC Standards Advisory hits the mark well on this issue. 

4. Governance: This is perhaps the most critical issue limiting the impact of the 

tax-payers $30B investment in health IT. In the original HITECH act, ONC was 

called upon to establish the governance for the nationwide health information network. Now, more than 6 years later, that governance still does not exist, due in part 

to interpretations of limitations on ONC’s authority. Thus, there is a vacuum in governance for this critical component of America’s infrastructure—and that vacuum is 

being filled by various consortia and collaborations of vendors and large provider organizations. In order to rapidly advance health IT and interoperability, ONC’s authority should be made clear, and I believe strongly that the correct perspectives 

to include in that governance are: 

a. Those who receive care (patients, special population representatives); 

b. Those who deliver care (providers, public health); and 

c. Those who pay for care (payers, employers, governments). 

Thank you for this opportunity to share my experiences and offer my advice. The 

progress made to date is tremendous, and I am confident that with your guidance, 

health and healthcare in America can become the best in the world. 

The CHAIRMAN. Thank you very much. 

Dr. Mirro. 

13 

STATEMENT OF MICHAEL J. MIRRO, M.D., FACC, FAHA, FACP, 

PAST CHAIR, MEDICAL INFORMATICS COMMITTEE, AMERICAN COLLEGE OF CARDIOLOGY AND CHIEF ACADEMIC/RESEARCH OFFICER, PARKVIEW MIRRO CENTER FOR RESEARCH AND INNOVATION, FORT WAYNE, IN 

Dr. MIRRO. Chairman Alexander, Ranking Member Murray, and 

members of the committee, thank you for the opportunity to speak 

today on this important issue of information blocking and the unforeseen problems that have been created and the possible solutions that will help improve patient care. 

My name is Michael J. Mirro. I am testifying today on behalf of 

the American College of Cardiology, a 49,000-member medical society that is the professional home for the entire cardiovascular care 

team. 

I am board certified in internal medicine, cardiovascular disease, 

clinical cardiac electrophysiology, and geriatrics. I have focused the 

majority of my clinical work on cardiac implantable devices in patients with serious heart rhythm problems, and my clinical investigation historically has been on new and advanced technologies to 

enhance their function. 

I have worked also in the deployment of informatics tools since 

1995, assisting in the refinement and development of decision support tools to improve point of care of patients with congestive heart 

failure. 

In private practice, my partners and I were early adopters of 

electronic health records, and these systems were implemented before the HITECH passage. They were complemented by the fact 

that they had user-centered design as opposed to software-centric 

design, which now occur commonly. 

Additionally, many of the current systems lack clinical utility 

and create substantial practice inefficiencies and reduce quality of 

the patient-physician interaction during an office visit. 

I first became aware of information blocking when my colleagues 

in other private practices of cardiology adopted EHRs and were 

forced to spend substantial resources to interface with their health 

system’s EHR. Those practices would have been able to better financially plan if the cost had been disclosed during the contracting. 

Transparency of additional hidden costs or fees within contracts 

with EHR vendors should be evaluated. Many contracts between 

providers and EHR vendors include a gag clause, which prevent 

providers from speaking publicly about the problems associated 

with their EHRs. EHR vendors should not be allowed to include 

such clauses in the contract. 

The delay of information sharing is another form of information 

blocking. I once had a patient who was admitted to the emergency 

room in cardiac arrest. Because of a delay in receiving his cardiac 

history, data critical to the care of this patient, it resulted in an 

unfortunate outcome. The patient experienced complications. There 

was an emergency cardiac catheterization, subsequently resulting 

in a prolonged hospital stay. However, he did survive. 

Rapid and secure exchange of health information is critical. In 

some cases, it could mean the difference between life and death. 

Data fluidity should mean not only that information reaches the 

provider, but the data is transmitted quickly and securely. Many 

14 

EHR vendors provide the functionality needed but require the user 

to purchase their IT products to make the elements of EHR interoperable. Like other products, such as consumer electronics, you 

are able to connect, but you must buy a company’s specific products 

in order to do so with ease. 

The ramifications of technology in healthcare that we are not 

able to communicate are serious, resulting in decreased care quality and stunting improvements in population health. EHR vendor 

products should be universal and connect with other EHRs offered 

by different companies. 

Another advantage of the free flow of data is to empower patients in their care decisions. One of our recent projects has been 

to establish a way for patients who are remotely monitored with 

implantable cardiac devices to receive their data. 

Each element of the four companies that make these implantable 

devices are available. However, we have to require interface between each vendor in our EHR system. We have to pay for that 

interface to be created. 

Health IT vendors and providers should be incentivized to establish networks for patients to monitor their cardiac devices particularly, empowering them to actively participate in their healthcare 

decisions. In addition, adoption of public data standards should be 

expected and supported in the best interests of patients so the patients can receive their data. 

Many information blocking problems stem from the financial incentives of the EHR companies to obstruct data. The HITECH Act, 

along with implementation of meaningful use program, has improved data sharing and data liquidity to some degree. 

With that stated, the unintended consequences of meaningful use 

is that the systems were designed to facilitate charge, capture, and 

revenue cycle management and focus less on clinical data utility. 

Although meaningful use programs have brought favorable results 

within the context of data transfer, many of the requirements set 

forth in the program are unattainable. 

Recognizing that only 11 percent of physicians have attested for 

Stage 2 meaningful use, I recommend, in concert with the ACC, 

that Stage 3 meaningful use be delayed in its entirety. 

In addition to what I have discussed, the College has called for 

many of the same actions recommended by the ONC’s report of 

April 2015, and these include the following: 

No. 1, strengthen in-field surveillance of health IT certified by 

ONC; 

No. 2, constrain standards in implementation specification for 

certified health IT; 

No. 3, work in concert with HHS to improve stakeholder understanding of HIPAA provisions provided related to information 

blocking; and 

No. 4, work with CMS to coordinate healthcare payment incentives and leverage market drivers to reward interoperability and 

discourage information blocking. 

In closing, I commend you, Chairman Alexander and Ranking 

Member Murray, and your excellent staff for gathering us today, 

taking this initiative to accomplish specific goals related to interoperability and information blocking. Furthermore, I applaud the 

15 

collaborative bipartisan approach and thank you again for the opportunity to speak here today. 

I will look forward to the discussion. 

[The prepared statement of Dr. Mirro follows:] 

PREPARED STATEMENT OF MICHAEL J. MIRRO, M.D., FACC, FAHA, FACP 

SUMMARY

EHR VENDOR CONTRACTS

• Transparency of additional (or hidden) fees should be evaluated. • EHR vendors should not be allowed to include gag clauses. 

DATA FLUIDITY

• Patient information should reach the provider without delay in a fast, secure manner. • EHR vendors’ products should be universal and connect to other EHRs offered 

by different companies. • Health IT vendors and providers should be incentivized to establish networks 

for patients to monitor their devices and to empower them to actively participate 

in their health decisions. • Adoption of public data standards should be expected and supported in the best 

interest of patients. 

MEANINGFUL USE STAGE 3

• Stage 3 of the Meaningful Use program should be delayed in its entirety. 

ENDORSEMENT OF ACTIONS OUTLINED IN ONC’S APRIL 2015 REPORT TO CONGRESS ON

INFORMATION BLOCKING

• Strengthen in-the-field surveillance of health IT certified by ONC. • Constrain standards and implementation specifications for certified health IT. • Work in concert with HHS to improve stakeholder understanding of the HIPAA 

provisions related to information sharing. • Work with CMS to coordinate health care payment incentives and leverage 

other market drivers to reward interoperability and exchange and discourage information blocking. 

Chairman Alexander, Ranking Member Murray, and members of the committee, 

thank you for the opportunity to speak today about the important issue of information blocking, unforeseen problems that have been created, and possible solutions 

to help improve patient care. 

My name is Michael Mirro and I am testifying today on behalf of the American 

College of Cardiology, a 49,000-member medical society that is the professional 

home for the entire cardiovascular care team. I am board certified in internal medicine, cardiovascular disease, clinical cardiac electrophysiology, and geriatrics. [In addition to seeing patients, many who suffer from multiple chronic conditions, I also 

serve as Chief Academic Research Officer at Parkview Health System in Ft. Wayne, 

IN where I manage over 90 clinical trials.] I have focused the majority of my clinical 

work on cardiac implantable electronic devices in patients with serious heart 

rhythm problems and clinical investigation into new and advanced technology to enhance their function. [I have worked extensively on remote monitoring of cardiac devices and electronic messaging patients their data from their individual device.] I 

have worked in the development of health informatics tools since 1995, assisting in 

the refinement of clinical decision support software to improve point of care quality 

related to congestive heart failure. 

The private practice that my partners and I owned was an early adopter of electronic health records. These systems, implemented before HITECH’s passage, had 

a user-centered clinical design, as opposed to the software centric certified EHR systems of today. Additionally, many current systems lack clinical usability and thus 

create substantial practice inefficiency and reduced quality patient-physician interaction during an office visit. 

I first became aware of information blocking when my colleagues in other private 

cardiology practices adopted EHRs and were forced to spend substantial resources 

to interface with their health system’s EHR. These practices would have been able 

to better plan financially if these costs had been disclosed at the outset. [FortuVerDate Nov 24 2008 16:06 Aug 09, 2017 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 S:\DOCS\95737.TXT CAROL
16 

nately, the practice was in a financial position to absorb these costs, but many other 

practices are not.] Transparency of additional (or hidden) fees within contracts with EHR vendors should be evaluated. Many contracts between providers and EHR vendors include gag clauses which prevent providers from speaking 

publicly about problems associated with EHRs. EHR vendors should not be allowed to include such clauses. 

The delay of information sharing is another form of information blocking. I once 

had a patient admitted to the emergency room in cardiac arrest. [The patient was 

a truck driver from out of State.] Because of a delay in receiving his cardiac history, 

data critical to his care was not available in a timely fashion. The patient experienced a complication during the emergency heart procedure resulting in prolonged 

illness. [The support of electronic messaging of standard clinical summaries is a critical issue with respect to quality and safety of patient care.] Rapid, secure exchange 

of health information is critical and in some cases can mean the difference between 

a patient living and dying. Data fluidity should mean not only that information reaches the provider, but that the data is transmitted quickly and securely. 

Many EHR vendors provide the functionality needed, but require the user to purchase their health IT products to make the elements of the EHR interoperable. Like 

other products such as consumer electronics, you are able to connect, but you must 

buy a specific company’s products to do so with ease. The ramifications of technology 

in health care that are unable to communicate are serious, resulting in decreased 

care quality and stunting improvements in population health. EHR vendors’ products should be universal and connect to other EHRs offered by different 

companies. 

Another advantage of the free flow of data is to empower patients in their health 

care decisions. One of my recent projects was to establish a way for patients to remotely monitor their implanted devices. Each element of the four devices available 

in the market had a different vendor, requiring us to contract with four different 

vendors and pay four different set-up costs to allow patients to accomplish one task. 

Health IT vendors and providers should be incentivized to establish networks for patients to monitor their devices, empowering them to actively 

participate in their health decisions. In addition, adoption of public data 

standards should be expected and supported in the best interest of patients. 

Many information blocking problems stem from the financial incentives of EHR 

companies to obstruct data. The HITECH Act, along with implementation of the 

Meaningful Use Program, has improved data sharing and data liquidity. With that 

stated, the unintended consequence of Meaningful Use is that systems were designed to facilitate charge capture and revenue cycle management and focus less on 

clinical data and usability. [The importance of exchanging a clinical summary document has been enhanced by this program, but we need surveillance of individual vendor behavior.] Although the Meaningful Use program has brought favorable results 

within the context of data transfer, many of the requirements set forth in the program are unattainable. Recognizing that only 11 percent of physicians have attested 

to stage 2, I recommend, in concert with the ACC, that stage 3 of Meaningful Use 

be delayed in its entirety. 

In addition to what I have discussed, the College has called for many of the same 

actions recommended in the Office of the National Coordinator’s April, 2015 Report 

to Congress on Information Blocking, including: 

• No. 1: Strengthen in-the-field surveillance of health IT certified by 

ONC. [The ACC feels strongly that a program such as this is needed and that ONC 

would be the appropriate entity to administer such a program. ONC could hire an 

outside contractor to affirm compliance—similar to what CMS has done with the 

Meaningful Use program.] 

• No. 2: Constrain standards and implementation specifications for certified health IT. [This committee has debated whether the Federal Government or 

the private sector should establish common standards, and the ACC believes it 

should be a combination of both. Medical specialty societies are well-equipped to engage in the creation of these standards, while the Federal Government is needed 

to oversee enforcement of the standards.] 

• No. 3: Work in concert with HHS to improve stakeholder understanding 

of the HIPAA provisions related to information sharing. [HIPAA is outdated 

and in many cases is actually an impediment to patient care. The ACC would encourage the committee to reevaluate HIPAA in its entirety—including its successes 

and failures—and whether all aspects of HIPAA remain appropriate given today’s 

technology.] 

17 

• No. 4: Work with CMS to coordinate health care payment incentives 

and leverage market drivers to reward interoperability and discourage information blocking. [As with my example given earlier about creating a mechanism to remotely monitor devices, this is proof that when coupling providers with 

innovative companies, we can improve the well-being of our patients and reduce 

costs.] 

In closing, I commend you, Chairman Alexander and Ranking Member Murray, 

and your excellent staff for gathering us today and taking the initiative to accomplish specific goals related to interoperability and information blocking. Furthermore, I applaud your collaborative, bipartisan approach. Thank you again for the 

opportunity to be here today. I look forward to the discussion. 

The CHAIRMAN. Thank you, Dr. Mirro. 

Dr. Kibbe 

STATEMENT OF DAVID C. KIBBE, M.D., MBA, PRESIDENT AND 

CEO, DIRECTTRUST, SENIOR ADVISER, AMERICAN ACADEMY 

OF FAMILY PHYSICIANS, WASHINGTON, DC 

Dr. KIBBE. Good morning. Chairman Alexander, Ranking Member Murray, and distinguished members of the committee, thank 

you for the opportunity to share my thoughts today. 

Direct exchange was designed by an ONC-led consortium of over 

50 organizations to replace paper-based mail, fax, and courier services with secure electronic messaging between users of different 

electronic health record applications and personal health record applications. Direct messaging is very similar to electronic mail, 

email, in that a sender can compose a message, attach a file or 

files, and send the package over the Internet to the address of a 

recipient. 

Because transmissions are encrypted and identity validated, this 

method of sharing data is ideally suited to the handling of personal 

health information, which needs to be protected at all times. 

The use of Direct exchange has grown very rapidly. There are 

now over 300 electronic health record vendor products that are certified by ONC as Direct enabled, and over 50 health information 

exchanges nationwide provide Direct exchange services. 

DirectTrust members have provisioned nearly 1 million Direct addresses and accounts in the healthcare industry, enabling Direct 

exchange at over 40,000 healthcare organizations. 

Over 30 million Direct messages have been exchanged in 2014 

and 2015 so far in support of transitions of care and care coordination. The Indian Health Services, the Veterans Administration, the 

U.S. Postal Service, and the Centers for Medicare and Medicaid 

Services all have Direct implementation programs underway. 

Despite this success, information blocking by healthcare provider 

organizations and their EHRs, whether intentional or not, is still 

a problem for some providers and their relying parties. Persisting 

information blocking problems include local electronic health record 

and provider policies that are not standard, EHR product design 

and/or implementation flaws, lack of or inadequate product and 

service support, and high pricing for interoperable-enabled software 

products and services. 

Time allows me to provide you with just a couple of examples. 

EHRs capable of Direct exchange should accept all trusted inbound 

messages and attachments. However, some electronic health record 

companies’ products require that an incoming Direct message be 

accompanied by a particular attachment. 

18 

No attachment or not the particular attachment, the inbound 

message is discarded and dropped, often without letting the sender 

know that that has happened. Clearly, this is frustrating to relying 

parties, but it is also not the original intent of Direct exchange, 

which supports transport of messages without attachments and 

with many different kinds of file attachments. 

Another example. Believe it or not, although ONC certified to 

send and receive Direct messages, some EHR vendors’ products are 

unusable in the field, as has been noted. They lack an inbox or a 

message compose button or some other key component that allows 

the user to easily compose messages and send them. 

In my opinion, the responsibility for assuring secure interoperable exchange resides primarily with the healthcare organizations, 

not with EHR vendors and not with the Government. Healthcare 

provider organizations must demand collaborative and interoperable health IT tools from their EHR vendors to make patientcentered care routine and ubiquitous as a practice throughout all 

communities in the United States. 

However, there are roles for Government, and I want to list a 

few that we find of high importance. Government can continue to 

shed light on these problems and work with trade groups, standards, and policies organizations, as you have done with these hearings that I think have been extremely valuable already. 

These hearings are setting high expectations for interoperability 

of electronic health records and other applications and especially 

for those that have benefited from the subsidies of the meaningful 

use programs. 

ONC can bring better and improved EHR certification processes 

forward beyond the testing laboratory so that the EHR’s usability 

of interoperability features in the field becomes part of the public 

record and can be used in purchasing decisions, as my colleague 

has already mentioned. It is very, very important to make that 

public record available. 

Congress can accelerate multiple Federal agency uses and demand for open standard-based interoperability of health IT with 

private sector communities and providers in order to remove the 

demand and lessen the use of fax, e-fax, mail, and courier. The savings in documentation and time and cost for these Federal agencies, as well as their partners in the private sector, would be enormous in a very short period. 

Finally, CMS should continue to link the use of certified EHR 

technology to participation in value-based purchasing programs. 

Doing this makes interoperability and collaboration across multiple 

organizations in multi-vendor environments and with patients directly financially rewarding to providers and their health IT vendors. 

Demand for collaboration and interoperability is best driven by 

underlying business models and business cases supported by good 

regulation and oversight. 

Finally, I would just like to say I think the memo has gone out. 

Collaboration and interoperability of health IT is mandatory. It is 

no longer nice to have. We still have some kinks to work out and 

some people to deliver that message to, perhaps a second round. 

Thank you. 

19 

1http://www.healthit.gov/sites/default/files/reports/infolblockingl040915.pdf. 

[The prepared statement of Dr. Kibbe follows:] 

PREPARED STATEMENT OF DAVID C. KIBBE, M.D., MBA 

SUMMARY

My name is David Kibbe and I serve as the president and CEO of the non-profit 

trade alliance DirectTrust, and also as senior advisor to the American Academy of 

Family Physicians, the physician membership organization representing over 

100,000 of the Nation’s family physicians, residents, and students. 

Because of the added privacy, security, and identity layers of Direct exchange, 

this method of sharing of data between providers using different EHRs, and between providers and patients, is ideally suited to the handling of personal health 

information which must be protected at all times. 

Interoperable Direct exchange has grown rapidly since becoming a required feature of EHR technology certified by ONC in 2014. There are over 300 EHRs that 

are certified as Direct-enabled, and over 50 HIEs nationwide provide Direct exchange services. DirectTrust members alone have provisioned nearly one million Direct addresses in the health care industry, enabling Direct exchange at over 40,000 

health care organizations. Over 30 million Direct messages have been exchanged in 

2014 and 2015 so far in support of transitions of care and care coordination. The 

Indian Health Services, U.S. Postal Service, Veterans Administration, and the Centers for Medicare and Medicaid Services all have Direct implementations under way 

to replace mail, fax, and efax communications between these Federal agencies and 

providers in the private sector beginning later this year. 

While it is true that interoperable health information exchange has made great 

progress in the past 2 years, information blocking by health care provider organizations and their EHRs, whether intentional or not, is still a problem for some providers wishing to use Direct exchange. Persisting information blocking problems include: Local EHR and provider organization policies; EHR product design and/or implementation flaws; lack of or inadequate product/service support; and high pricing 

for HIE-enabled software upgrades. 

In my opinion, the responsibility for assuring secure interoperable health information exchange resides primarily with the health care provider organizations, not the 

EHR vendors, and not the government. However, there is a role for government to 

encourage and incentivize collaboration and interoperability. Among the actions that 

government can take should be: To continue to shed light on these problems; to 

bring better and improved EHR certification processes forward beyond the testing 

laboratory; to accelerate Federal agency use of and demand for open, standardsbased interoperable HIE with private sector providers and provider organizations; 

and to continue to tie more robust ONC EHR certification and use of certified EHR 

technology to participation in Value Based Purchasing programs. 

The root causes of information blocking are not technological or due to a lack of 

standards for interoperability or EHR capabilities for interoperable exchange. As 

noted in the ONC Report to Congress on Information Blocking of April 2015,1

‘‘While some types of information blocking may implicate these technical 

standards and capabilities, most allegations of information blocking involve 

business practices and other conduct that interferes with the exchange 

of electronic health information despite the availability of standards 

and certified health IT capabilities that enable this information to be 

shared.’’—(Emphasis added.) 

Therefore, attempts to redress information blocking must address the unwillingness of some providers and their EHR partners to share and exchange data, and 

not just the specific technical problems that may be encountered in making exchanges run smoothly and reliably. In my opinion, that unwillingness originates in 

the current business models of the health care industry in general, wherein fee-forservice payment creates disincentives for sharing of health information and rewards 

information hoarding, or at least the delay of timely information exchanges. 

Changes to these payment incentives could do much to reward business models 

where collaboration and interoperability are highly valued, and would create conditions for the technological capabilities, standards, and infrastructure for interoperable health information exchange now in place to be put to much better use. 

20 

OPENING REMARKS

Chairman Alexander, Ranking Member Murray and distinguished members of the 

committee, thank you for the opportunity to share my thoughts on problems that 

impede the sharing of health information between and among parties authorized to 

access such information, now often referred to as ‘‘information blocking.’’ I will offer 

some near-term suggestions to help improve upon the current situation. 

My name is David Kibbe and I serve as the president and CEO of the non-profit 

trade alliance DirectTrust, and also as senior advisor to the American Academy of 

Family Physicians, the physician membership organization representing over 

100,000 of the Nation’s family physicians, residents, and students. 

DirectTrust’s 150-plus members are a vibrant community of service providers, 

health IT vendors, and health care organizations dedicated to the use of interoperable, secure, standards-based health information exchange via the Direct standard, 

as well as other vendor-agnostic technologies. 

Direct exchange was designed to replace paper-based mail, fax, and efax transmissions of health information with secure electronic messaging between users of 

different software applications, like EHRs. Direct messaging is very similar to electronic mail, or email, in that a sender can compose a message, attach a file or files, 

and send the package over the Internet. Both sender and receiver need to have Direct addresses that usually have the format firstname.lastname@Direct.MyMedical 

Practice.com, supplied by Health Internet Service Providers, or HISPs. The word 

‘‘direct’’ in the address signifies that both the message and attachments are 

encrypted end-to-end, and that the identities of both parties have been validated. 

Because of the added privacy, security, and identity layers of Direct exchange, 

this method of sharing of data between providers using different EHRs, and between providers and patients, is ideally suited to the handling of personal health 

information which must be protected at all times. 

Interoperable Direct exchange has grown rapidly since becoming a required feature of EHR technology certified by ONC in 2014. There are over 300 EHRs that 

are certified as Direct-enabled, and over 50 HIEs nationwide provide Direct exchange services. 

DirectTrust members alone have provisioned nearly one million Direct addresses 

in the health care industry, enabling Direct exchange at over 40,000 health care organizations. Over 30 million Direct messages have been exchanged in 2014 and 

2015 so far in support of transitions of care and care coordination. The Indian 

Health Services, U.S. Postal Service, Veterans Administration, and the Centers for 

Medicare and Medicaid Services all have Direct implementations under way to replace mail, fax, and efax communications between these Federal agencies and providers in the private sector beginning later this year. 

DirectTrust members have significant experience with interoperability testing and 

the problems that can impede Direct exchange information flows. Indeed, 

DirectTrust is something of a laboratory wherein these problems are routinely identified, investigated, and usually solved. Here are some of our collective observations 

on information blocking from an ‘‘on the street’’ perspective. 

EXAMPLES OF INFORMATION BLOCKING

While it is true that interoperable health information exchange has made great 

progress in the past 2 years, information blocking by health care provider organizations and their EHRs, whether intentional or not, is still a problem for some providers wishing to use Direct exchange, as well as for these providers’ clinical partners who want to be able to exchange Direct messages and attachments with them. 

Persisting information blocking problems include:

• Local EHR and provider organization policies. For example, an EHR might require that an incoming Direct message be accompanied by a particular attachment 

type. No attachment? The inbound message and its files are discarded, often without letting the sender know. Which is very frustrating to relying parties. Clearly 

this was not the original intent of Direct exchange, which supports virtually any 

kind of file transmission, with or without an attachment.

• EHR product design and/or implementation flaws. For example—believe it or 

not—although certified to send and receive Direct messages, some EHR vendors’ 

products lack an ‘‘inbox’’ or ‘‘compose’’ button, or other key component needed to 

allow the user to compose messages, attach files, and so on. 

• Lack of or inadequate product/service support. If an EHR customer can’t get 

service assistance for their product’s interoperability functions, this inhibits or 

delays information exchange set up and implementation for providers seeking to use 

interoperable health IT.

21 

• High pricing for HIE-enabled software upgrades. While some vendors include 

the costs of upgrading from Stage 1 to Stage 2 features and functions, including Direct exchange capability, others make the new features a new cost that practices 

must bear. Clearly, this hurts the smaller practices more than it does the bigger 

institutions. • Registration and ‘‘whitelisting’’ requirements for message exchange. Making exchange partners register with the practice’s or hospital’s EHR in effect discourages 

EHR users from engaging in standards-based interoperable HIE. It’s a little bit like 

having a phone that requires each caller to fill out a complicated form and ‘‘apply’’ 

to be able to reach you before you’ll accept their call. • ‘‘HIPAA doesn’t allow.’’ Perhaps the most significant problem of all is faced by 

patients and consumers trying to use Direct exchange to access their medical 

records, only to be told that HIPAA won’t allow them to do so. Patients and consumers ought to be able to be full participants in Direct exchange and partners with 

their providers in health information exchanges. 

THE ROLE OF GOVERNMENT TO ENCOURAGE HEALTH

INFORMATION EXCHANGE

In my opinion, the responsibility for assuring secure interoperable exchange resides primarily with the health care provider organizations, not the EHR vendors, 

and not the government. Health care provider organizations must come to realize 

that acting in the best interest of patients is to assure that health information follows the patient and consumer to whatever setting will provide treatment, even if 

that means in a competitor’s hospital or medical practice. And they must demand 

collaborative and interoperable health IT tools from their EHR vendors to make this 

routine and ubiquitous as a practice in every community in the United States. 

However, there is a role for government to encourage and incentivize collaborative 

and interoperable health information exchange. Among the actions that government 

can take to help overcome the kinds of continuing problems I have mentioned above 

should be: 

• To continue to shed light on these problems, and work with trade groups, standards and policies organizations, and others to set expectations for interoperability 

of EHRs and other applications certified as interoperable, especially those that have 

been federally subsidized within the Meaningful Use programs. Let’s ‘‘Finish what 

we started before moving to more complex solutions that may or may not work.’’ • To bring better and improved EHR certification processes forward beyond the 

testing laboratory, so that the utility and usability of interoperability features of 

ONC certified EHR products in the field becomes part of the public record, and can 

be used in purchasing decisions. Collaboration and partnership with non-profit trade 

groups to achieve this goal would be advisable. • To accelerate Federal agency use of and demand for open, standards-based 

interoperable HIE with private sector providers and provider organizations, thereby 

removing reliance on paper-based mail, fax, efax, and courier for these Federal programs. 

Examples include Veterans Health Administration referrals to and from private 

sector medical practices and hospitals; Veterans Benefits Administration health information exchanges with private sector medical practices and hospitals; the use by 

Medicare, Medicaid, and State agencies of interoperable HIE for communications 

with private sector providers and provider organizations for limitation of fraud, payment adjudication, claims attachments requests, and other administrative transactions now done via fax and mail. • To continue to tie more robust ONC EHR certification and use of certified EHR 

technology to participation in Value Based Purchasing programs, wherein interoperability and collaboration across multiple organizations in multiple-vendor environments is financially rewarding to providers and their health IT vendors. Demand 

for collaboration and interoperability is best driven by underlying business models 

and business cases supported by regulation and oversight. 

SUMMARY

Information blocking is a persistent and real problem faced by providers, provider 

organizations, and patients who wish to share and exchange health information between and among parties authorized to access such information, and to use that information to improve quality and care coordination. 

Progress is being made, and, at its root the causes of information blocking are not 

technological or due to a lack of standards for interoperability or EHR capabilities 

for interoperable exchange. As noted in the ONC Report to Congress on Information 

Blocking of April 2015,1

22 

‘‘While some types of information blocking may implicate these technical 

standards and capabilities, most allegations of information blocking involve 

business practices and other conduct that interferes with the exchange 

of electronic health information despite the availability of standards 

and certified health IT capabilities that enable this information to be 

shared.’’—(Emphasis added.) 

Therefore, attempts to redress the root causes of information blocking must address the unwillingness of some providers and their EHR partners to share and exchange data, and not just the specific problems that may be encountered in making 

exchanges run smoothly and reliably. In my opinion, that unwillingness originates 

in the current business models of some health care provider organizations, and the 

health care industry in general, wherein fee-for-service payment creates disincentives for sharing of health information and rewards information hoarding, or at least 

the delay of timely information exchanges. Changes to these payment incentives 

could do much to reward business models where collaboration and interoperability 

are highly valued, and where the technological capabilities, standards, and infrastructure for interoperable health information exchange now in place would be put 

to much better use. 

The CHAIRMAN. Thank you. 

Dr. Black. 

STATEMENT OF PAUL M. BLACK, MBA, PRESIDENT, CHIEF EXECUTIVE OFFICER AND DIRECTOR, ALLSCRIPTS, CHICAGO, 

IL 

Mr. BLACK. Thank you. 

Chairman Alexander, Ranking Member Murray, distinguished 

members of the committee, thank you for the opportunity to share 

my perspectives on the critical topic of the impediments to health 

data exchange and the best ways to address them. It is a true 

honor to be here. 

You have my written statement, which I will summarize in my 

remarks today. 

My name is Paul Black, president and CEO of Allscripts, the 

largest developer of health information technology, including electronic health records, revenue solutions, population health, and information exchange services. 

More than 180,000 physicians, including those in 45,000 ambulatory practices, 2,700 hospitals, and 13,000 post-acute facilities utilize Allscripts solutions to connect clinical and business operations 

within their organizations and throughout their communities. We 

employ 7,000 team members and have offices in 16 different States, 

including Illinois, North Carolina, Vermont, Georgia, Massachusetts, as well as people working in all 50 States. 

Congress and the American people have wisely made the investment in the advancement of health information technology toward 

a vital goal—confirming that this country’s citizens are receiving 

the best care. Information exchange across vendor platforms and 

care settings is now required to meet that goal. 

Tomorrow, connected healthcare networks won’t be built by one 

company or by technologists alone, but by all of us. Allscripts decided years ago to invest in an open approach to connectivity. Our 

corporate vision is granted in our dbMotion connectivity EMRagnostic platform, and our philosophy, which has led to the development of a large network of external certified software developers 

who build apps based on our open application program interface, 

or APIs. 

23 

While current narrative on interoperability is often negative, we 

note that there are many examples of providers who have established community-wide connectivity and who are connecting patients to their records, preventing disease and saving money. 

Thankfully, with today’s technologies, changing EHRs isn’t necessary in order to provide medical professionals with access to information, though not all stakeholders have embraced our position 

that replacing systems is an inefficient way to establish data exchange. There are many factors that need to be tackled ultimately 

to build an open, connected network of health. 

No. 1, we need to maximize the standards development, building 

on progress to date and encouraging adoption of standards-based 

approaches by everyone. Congress’ role is to give stakeholders guidance on what is expected and create reasonable timelines. 

We need agreement on the so-called ownership of patient data. 

We need a way to identify each individual patient in the system, 

which we think is very vital. And last, we need greater transparency in the areas of interoperability and within health IT, and 

we must achieve this interoperability transparency. 

It is true that not all stakeholders seem to be equally motivated 

to make information liquid. Sluggish exchange largely stems from 

one massive gap, the lack of a strong business case for interoperability in healthcare. The payment system that has been in place 

for decades does not motivate them to create an interconnected 

healthcare environment. 

Recent legislation, such as the replacement of SGR and reform, 

such as ACOs, are great steps, and continuing to think about the 

relationship between payments and care coordination can only 

strengthen this imperative. We encourage Congress to allow recent 

laws and regulations to play out before additional interoperability 

legislation is passed. 

The same advice applies to standards development work. There 

should be some time allowed for the fine-tuning of existing standards, such as Direct, even when we explore new ones. Congressional attention would be best served in directing ONC to drive 

consistent adoption in implementation of the standards rather than 

focusing on the need to create new ones. 

Last, Mr. Chairman, I note that you said previously that the best 

way to solve the problems around interoperability would be for the 

health IT industry to do something itself. I share this view. We 

have a real obligation here, along with other provider organizations 

that we support. 

I feel strongly that this is doable, and I challenge all of my colleagues today to continue working together with us, with you, the 

provider stakeholders, the ONC, and the patient community that 

have so much to offer in this conversation until we have achieved 

success. 

Thank you again for the opportunity to be here. 

[The prepared statement of Mr. Black follows:] 

PREPARED STATEMENT OF PAUL M. BLACK, MBA 

Chairman Alexander, Ranking Member Murray, distinguished members of the 

committee, thank you for the opportunity to share my perspectives on the critical 

topic of impediments to data exchange and the best ways to address them across 

the health system. It is a true honor to be here. 

24 

My name is Paul Black, and I serve as the president and chief executive officer 

of Allscripts. Allscripts is the largest developer of health information technology for 

this country’s healthcare providers, including Electronic Health Records, revenue 

cycle management software, and population health and information exchange services. More than 180,000 physicians, including those delivering care in 45,000 ambulatory practices; 2,700 hospitals; and 13,000 post-acute care facilities and homecare 

agencies utilize Allscripts solutions to connect the clinical and business operations 

both within their organization and within their community. We employ 7,000 team 

members and have offices in 16 different States, including Illinois, North Carolina, 

Vermont, Georgia, and Massachusetts, as well as people working in all 50 states. 

I was invited here today to speak about interoperability and concerns about information blocking, and as more independent doctors use our software to treat patients 

than any other commercially available product, I’m pleased to share recommendations with you on this topic. This is important for two reasons: if a stakeholder were 

to intentionally get in the way of information exchange, (1) it would be bad for patients, and (2) it could be anti-competitive. Period. 

Congress and the American people have wisely made an investment in the advancement of health information technology, all oriented around one goal: ensuring 

that this country’s citizens are receiving the best possible care—both from a quality 

and cost perspective. Robust, open information exchange across a multitude of vendor platforms and care settings is critical to ensuring that we meet that goal for 

America’s patients. An increased level of transparency and cooperation is needed to 

meet this challenge—health information technology developers, caregivers, employers, payers, pharmaceutical companies, health systems and the government must all 

work harder together to solve this problem. Tomorrow’s healthcare networks won’t 

be built by one company alone, or even by health information technology developers 

alone, but by all of us. 

Allscripts has been working with healthcare professionals across the spectrum of 

care for many years during a period in which health care and health IT have 

evolved at a tremendously rapid rate. The changes that have been required have 

been challenging—they have disrupted systems that have been in place for decades. 

But we realize that innovation arises from disruption, and we have embraced it. 

Several years ago, Allscripts made a decision to invest in an OPEN approach to 

connectivity—one that is grounded in our dbMotion connectivity platform and a philosophy which has led to the development of a large network of certified software 

developers outside of the company who build apps based on our open APIs. From 

North Shore LIJ—the largest private integrated delivery network in the country— 

to thousands of independent, single provider practices who make up the backbone 

of care in this country, we partner with physicians and other professionals nationwide who are taking this opportunity to innovate with us. 

And while the narrative on information exchange is largely negative in conversations in Congress and in the media, it is important to note that there are many examples of providers who have worked through the process of establishing 

connectivity and are making it work. These providers are changing lives by preventing disease and saving money. Organizations like Holston Medical Group, which 

has offered to connect all providers in NE Tennessee and SW Virginia and is already working with Allscripts to facilitate data exchange between 25 different EHR 

systems used by two hospitals and 1,200 physicians in more than 50 groups (either 

already connected or in process). University of Pittsburgh Medical Center, which 

has set up a connected network of 22 hospitals, 4,000 physicians, imaging centers, 

labs and others using dozens of different health information technology systems. 

Citrus Valley Health Partners in California, Baylor in Texas . . . that’s another 1.5 

million patient lives, and the list goes on. In fact, while it is clear there is still effort 

required, our clients demonstrate every day that information exchange can lead to 

quantifiable and demonstrable improvements in care delivery. 

It is true, however, that today not all stakeholders in the healthcare industry 

seem to be equally motivated to make information liquidity a reality. While the 

money spent through HITECH and other congressional investments have helped the 

industry to realize measurable benefits from the rapid adoption of electronic health 

records—an important success that shouldn‘t be overlooked—clinical data exchange 

is not where it needs to be. There are many factors that need to be addressed for 

us to ultimately be successful: 

• We need to expand the standards development process, building on the real 

progress underway with guidance from government and allowing the private sector 

to continuously develop, adopt and modify new standards; 

• Key constituencies, such as public health registries, labs, State health information exchange organizations and others who are not following available standards 

in their work, should be required to do so; 

25 

• State laws and regulations must be harmonized, particularly those related to 

privacy and security, patient consent and other similar topics; 

• Legal and liability concerns among providers about how the data will be used 

outside of patient care must be addressed; 

• We need to get beyond the focus on how data is transmitted and agree on what 

and how data is stored; 

• Activation strategies are needed to increase use of health IT by patients and 

their caregivers, while also generating accountability for their health outcomes; 

• We need a national patient matching strategy—a way to identify each individual patient. This is a real challenge to both robust data exchange and patient 

safety, and Congress needs to stop blocking progress on this critical issue; and 

• Finally, generally, greater transparency around interoperability and health IT 

among virtually all stakeholders must be achieved. 

Beyond all that, though, the sluggish progress we’re discussing today most closely 

stems from one critical deficit: the lack of a strong business case or a true market 

driver for interoperability. 

At the end of the day, healthcare in most environments is a business where margins must be considered and the bills paid, and the current payment system simply 

does not provide appropriate financial motivation for providers to truly be invested 

in creating an interoperable healthcare environment; this is especially true given 

that the burden of cost falls to them almost exclusively. 

Healthcare providers are genuinely committed to providing the best care they can 

to patients, of course, but in many instances, the common reality of running on only 

a few days’ cash-flow often trumps loftier goals. Much as CMS policy has already 

had a marked impact on hospital re-admission rates by associating them with payments, creating a direct relationship between payment and data exchange would 

have the same result. This could be the strongest step taken to create a genuine 

imperative for interoperability. 

H.R. 2, the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA), is 

a good start in the right direction, but Congress needs to ensure that alternative 

payment models envisioned in this reform are rolled out appropriately. The good 

news is that the expansion of delivery reforms is already motivating accelerated 

electronic data exchange progress. We see this in ACOs, and demonstrations like 

the Comprehensive Primary Care Initiative, which Allscripts supports as the technology provider for a very sizable percentage of the participants. Simply put, they 

create a use case for health IT that focuses on clinical value and less on what level 

of visit they can code. We have already seen real change result within our client 

base from new approaches at CMS and within the commercial payer space, and I 

expect that will accelerate as MACRA is implemented. 

For this reason, given the volume of new programs that have been and are being 

rolled out along with Meaningful Use Stage 3, which we expect to push the industry 

further in terms of interoperability, we encourage Congress to allow the impacts of 

these recent changes to play out further before additional legislation is passed specific to interoperability. There is an opportunity to see what adjustments providers 

make in response to the new payment models and what steps they start taking to 

maximize the new revenue opportunities. 

Generally, the same recommendation applies to standards development work—it 

is important that there be time for maturation and the fine-tuning of elements that 

are already being embraced by the industry (for example, Direct and CDA), and 

there is no need to toss aside approaches that are working. This doesn’t preclude 

exploring new and innovative approaches in an appropriately transparent manner, 

but the work done with standards development is not intended to have a lifetime 

of 2 years or 5 but longer than that so it’s important to move thoughtfully. I do understand the eagerness of Congress, the Administration and industry stakeholders 

to move rapidly because everyone is keen to see the results, but looking to standards 

as a panacea for the challenges still ahead of us will only result in usability complaints from providers as immature technologies are mandated by the government. 

Congressional attention would be best served in directing ONC to drive greater 

standards adoption and consistency of implementation of those standards, rather 

than focusing on the need for all new standards. 

Further, it is important to witness what innovation comes from the private sector, 

generally, in response to the recent legislative and regulatory activity, as well as 

client requests. There are exciting technologies and services in development now 

and on the product road maps for the next several years based on what our clients 

have requested of us, and I think we can all agree that we want to avoid a prescriptive, heavy-handed statutory or regulatory mandate in which the government becomes the de facto product manager for our industry as a whole. 

26 

Another important consideration in this conversation about information liquidity 

are the physician practices (small and large) and independent hospitals who have 

been pressured to move off of their current Electronic Health Record system— 

Allscripts in some cases—to one used by the large enterprise health system in their 

area. Sometimes the change is compelled through conversations about referrals, for 

example; threats not to include people in data networks; or even just a steady drumbeat of pressure, and it’s often done under the auspices of increased interoperability. 

In actuality, with today’s technology, changing systems just isn’t necessary in 

order to provide physicians and other medical professionals with access to the information they need. The rip-and-replace strategy emphasized by some in the industry 

is many years outdated given the advanced data exchange capabilities that are out 

there. Allscripts’ dbMotion platform provides an advanced semantic engine that aggregates and normalizes all clinical content across a connected community into a 

single view, accessible within whichever EHR the provider uses, to enable them to 

find relevant information quickly while with the patient. This technology is in use 

across numerous communities in the United States and overseas, including the entire country of Israel, and in each environment, it’s connecting dozens of different 

vendors successfully and directly changing the care decisions being made because 

of the additional information that’s available. 

Many people have termed what I just described—the pressure to change systems—as data bullying; others, data blocking because one involved party isn’t committed to establishing connectivity between current systems and in some instances, 

will even put up indirect roadblocks. This raises what I believe to be a fundamentally important issue—what, exactly, is the definition of data blocking? The ONC 

report on information blocking stated that it occurs when persons or entities knowingly and unreasonably interfere with the exchange or use of electronic health information, but it also notes that the extent to which such information blocking is impeding the effective sharing of electronic health information is not clear because 

much of the evidence is anecdotal and difficult to interpret. This is an issue that 

really must be addressed before even implicit data blocking can be addressed. 

An additional factor at play is the commoditization of data that is occurring everywhere within the industry. Through our partnership with our clients, one thing has 

become clear. Healthcare is mirroring a trend seen virtually everywhere in business—attempts to access and/or control data are driving many of the dynamics that 

are being discussed today. The topics that are raised in the meetings I have with 

clients every day are all about the power of data. ‘‘Big data’’, population health, personalized medicine, quality-driven reimbursement and information exchange—each 

a conversation about data and its enormous potential. Until there is greater clarity 

regarding the so-called ‘‘ownership’’ of the data, this will continue to be a significant 

factor in negotiations around interoperability. 

I will note, too, that this committee’s use of its oversight authority has had important effects already in driving undesirable behavior out of the industry, and we encourage continued attention in the coming years as health information technology 

is used not only as envisioned within the EHR Incentive Program but also for other 

important purposes, such as population health and personalized medicine. 

Last, Chairman Alexander has said previously that the best way to solve the 

problems around interoperability would be for the Health IT industry to do something itself. I share the view that we have a real responsibility here, along with the 

provider organizations that we support, and I feel strongly that this is doable. I 

challenge all of my colleagues to continue working together with us, with you, the 

provider stakeholders, the ONC and the patient community that have so much to 

offer in this conversation until we have achieved success. 

Thank you again for the opportunity to be here today. 

Senator ENZI [presiding]. Thank you. 

We will go to Senator Murray. 

Senator MURRAY. Thank you very much. 

Dr. Kendrick, you have personal experience working with providers in Oklahoma to make sure they are able to exchange electronic health information. I regularly hear from providers about information blocking, and HHS reported to Congress in April that in 

many cases, they have limited tools to find out when information 

blocking is actually occurring. 

To make matters worse, we have heard testimony that in order 

to use health IT, providers often have to sign contracts that include 

gag clauses, which prohibit them from disclosing technical probVerDate Nov 24 2008 16:06 Aug 09, 2017 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6601 S:\DOCS\95737.TXT CAROL
27 

lems or unfair pricing. Health IT is certified by the Federal Government because it stores and transmits information that is used 

to save lives, and users should be able to report safety problems. 

In your experience, can you talk to us about how easy it is to address unfair and unreasonable barriers to information exchange? 

Dr. KENDRICK. That is a big question. I like to refer to it as 

‘‘death by 1,000 cuts’’ because there are so many ways that the free 

flow of information about patients for their benefit can be blocked. 

The motivations are various. On the provider side, as several of 

the panelists have recommended, moving to value-based payment 

models really does a nice job of aligning the incentive of the providers in the patient’s favor to make sure that their record is available wherever and whenever it is needed. 

On the vendor side, however, there are lots of other motivations 

at play, and to keep it to less than an hour, I would say that perhaps the most critical thing we can do is to get governance for the 

nationwide Health Information Network correct because until we 

do, Congress will be dealing with this issue year after year after 

year. 

By getting governance correct, I mean getting a body that includes those who receive care, those who deliver care, and those 

who pay for care to help guide this network. They don’t need to 

have the technological knowledge. They can be supported by vendors and so forth, but that is where you are going to get—that is 

the eye—that is the right perspective to have in this. 

They will be able to set policies, because those three perspectives 

matter. They will be able to set policies that ensure that those contracts are transparent, that ensure that the standards that we 

have today can be used and that we move when we are ready to 

the next set of standards. 

Senator MURRAY. Do you think we need some tools or protections 

to ensure that individuals can safely report on unfair market practices without fear of repercussions? 

Dr. KENDRICK. Yes, absolutely. It has only been within the last 

year that we have begun to leverage ONC’s surveillance system, 

surveillance program for EHR certification. It has made a world of 

difference. 

In almost every issue we have filed, because we don’t want to 

waste people’s time, and we really—we exhaust every opportunity 

with the vendor and the provider to get the data moved. Almost 

every issue we filed has been found to be credible and has brought 

into question an EHR vendor’s certification. 

Senator MURRAY. OK, thank you. That is very helpful. 

Dr. KENDRICK. Sure. 

Senator MURRAY. Dr. Kibbe, let me turn to you. You testified 

that it is important for providers to have good information about 

how electronic health records worked in the field. In particular, you 

noted that information from this type of real-world testing could 

improve the purchasing decision of providers. 

Dr. Mirro also testified that ONC should support a strengthened 

in-the-field surveillance program and that technology developers 

must disclose additional fees they charge for sharing information 

between providers. I was actually glad to see the administration 

propose to include those two policies in their 2015 certification rule, 

28 

but what types of information do you expect in-the-field surveillance to cover? 

Dr. KIBBE. Yes, so thank you. 

My comments would very much piggyback on David’s comments. 

The confusion in the marketplace now among providers and provider organizations with respect to what their products are supposed to deliver in terms of interoperable exchange and particularly via Direct is a big problem, and there is no place where provider organizations can go to see how a particular product operates 

in the field. 

I mentioned that some of them are very good. Their products and 

features are familiar. People can begin to use them without any 

training. There are others where they don’t even have an inbox for 

the messages to be sent to, and obviously, they can’t operate very 

well if they don’t have those features. 

That is the kind of information that the marketplace needs to 

make better decisions, not necessarily because they want to switch 

their products to another product. They don’t necessarily want to 

do that. They want their product to be better. 

Senator MURRAY. Right. 

Dr. KIBBE. This would put pressure on the marketplace and end 

that confusion. 

Senator MURRAY. OK. I really appreciate that response, and I 

need to go join Senator Alexander at Appropriations markup. We 

are going to keep this hearing going, but I appreciate everybody 

being here, and I will be back shortly. 

Senator ENZI. Thank you. 

Since Senator Cassidy also has to go to another meeting, I will 

defer my turn for questions to him. 

STATEMENT OF SENATOR CASSIDY

Senator CASSIDY. Thank you, Senator Enzi. 

Dr. Kendrick, you are very explicit, saying that there are companies which hide functionality in order to basically bill for the same 

thing. You do not mention the company. Which company is it? 

Dr. KENDRICK. This particular company was eClinicalWorks. 

Senator CASSIDY. eClinicalWorks. Mr. Kibble, you also spoke specifically of companies blocking and imply that it was not justifiable. 

Which companies are they? 

Because I meet with these companies, and they deny it. They are 

saying we are not doing it. It has been a little bit hard to get people on the record so that when I meet with them I can channel you 

into that discussion. Mr. Kibble, can you kind of comment on who 

you see the offenders as? 

Dr. KIBBE. That is Dr. Kibbe. But that is OK. 

Senator CASSIDY. I am sorry. I can’t see your thing. I apologize. 

Dr. KIBBE. That is all right. Yes, I think that it is no secret in 

the industry that there are two companies in particular, electronic 

health record companies, very leading companies, Epic and 

eClinicalWorks, which both have over the course of the years, even 

before Direct exchange, developed their own proprietary messaging 

systems. 

One of the reasons why they have perhaps found it difficult to 

adopt Direct for their customers is because of their business model. 

29 

I respect that business model, but I also feel that it is important 

for them not to create the problems in the marketplace that Dr. 

Kendrick has mentioned. 

I would also mention that eClinicalWorks is a member of 

DirectTrust, and we are working with them on this problem. 

Senator CASSIDY. I met with Epic, and they deny information 

blocking. They say that they no longer require transfer fees and 

that if there is an issue of information blocking, it is because, oh, 

the hospital in Montana doesn’t know that the hospital in Baton 

Rouge is a member or da-da, da-da-da, and I can make a very plausible argument. 

What should I ask them next time if I am in the room with them, 

and you were to give me the question to ask? 

Dr. KIBBE. Yes, I would ask them what are their customers telling them, asking of them? Because I know for a fact that their customers are putting pressure on them to be more transparent and 

easier to work with other vendors’ products. 

Senator CASSIDY. That does not necessarily imply a business 

model which is information blocking. It could just suggest that the 

technology of their software is not meshed with the technology of 

the others. 

Is that a fair statement? 

Dr. KIBBE. Yes, and I would not say that either one of the companies that I have mentioned has a business model based on information blocking. That is not what I am saying. 

I am saying that they have in some cases implemented Direct exchange in ways that benefit their customers, but not necessarily exchange partners outside of their own customer base. 

Senator CASSIDY. Dr. Kendrick, you are the guy, frontline man, 

with all these FPs. What would you add to this? 

Dr. KENDRICK. It would be nice to have a metric of interoperability, some way to measure, for example, in what percent of a patient’s visits was there a complete record available from all sources. 

If we had that, then we could actually put a number to it. 

We don’t right now. I would really encourage us to get to that 

point because then you could really quantify. I can say that, yes, 

sometimes the provider is user involved, but generally when valuebased payment models come to town, that shifts. 

With the vendors, we have noticed some change in the last few 

months—probably as a credit to these hearings and as a start. 

Senator CASSIDY. Let me interrupt because I am almost out of 

time. Dr. Mirro, you spoke of something. I am a physician. I still 

practice, and I have a young resident working with me now who 

points out some literature that an intern spends 40 percent of her 

time documenting and only 8 minutes per day per patient. 

That just blows my mind, 40 percent documenting, 8 minutes per 

day per patient. The patient should feel cheated because the patient has been cheated. 

You mentioned, Dr. Kendrick, let me bounce off the two of you, 

that we should have no more standards. I am thinking we should 

have a standard that the electronic medical record is at least as 

time efficient as a paper record because, otherwise, we will not 

have 15 minutes with a patient, we will have 6 or 7. 

Dr. KENDRICK. One option I have raised is that—— 

30 

Senator CASSIDY. Dr. Mirro, I haven’t heard from you. 

Dr. KENDRICK. Oh, go ahead. 

Dr. MIRRO. Yes. Actually, well stated. I could tell you that in the 

field so that the fundamental problem is these systems all suffer 

from the fact that they are built on administrative datasets. Their 

meaningful use has really been a catalyst for charge capture revenue cycle management, what the systems are based on, and not 

clinical data capture. 

A lot of the systems then have to be morphed or redesigned to 

collect clinical data. 

Senator CASSIDY. I am out of time. Let me just interrupt. If we 

separated billing or charges from clinical data, that could make efficiency and make it more work for the patient? 

Dr. MIRRO. Also user-centered design. I think the systems are 

built by software developers, and they are easily usable by a software developer, but they are not easily usable by clinicians. We 

need to have more user-centered designed built in the system. 

The vendors do know this and are working for solutions. This is 

not volitional, but they do know who their customer is, and their 

customer is usually the CFO of the health system. 

Senator CASSIDY. Got you. 

Dr. MIRRO. It is not a patient. It is not a doctor. It is the CFO. 

That is who they are selling to. That is why they are designed the 

way they are. 

Senator CASSIDY. Thank you very much. I yield back. 

Senator ENZI. Thank you. 

Senator Franken. 

STATEMENT OF SENATOR FRANKEN

Senator FRANKEN. Thank you, Mr. Chairman. 

I am going to pick up a little bit where Senator Cassidy started. 

Dr. Kendrick, you noted in your testimony that the biggest obstacle 

that your members face in trying to share patient data across payers and providers is liberating data from their EHR systems. 

I have asked a number of my constituents about information 

blocking. Is it happening? Why? Who is to blame? I have gotten 

very different responses, depending on whom I am talking to. 

A common theme I picked up on is that those healthcare providers who are using the same EHR don’t think information blocking is happening, even when they are part of competing health systems, and the information blocking example No. 5 that you have 

aptly named ‘‘EHR at the center of the universe’’ helps explain this. 

If one EHR vendor is designing a technology that is not completely compatible with other systems and using its market clout 

to pressure providers to buy its product, doesn’t this raise some serious legal concerns about anticompetitive behavior? 

Dr. KENDRICK. I am no lawyer. I am just a doctor. 

Senator FRANKEN. Humble. 

Dr. KENDRICK. I find it ironic that large vendors who claim huge 

amounts of interoperability are primarily exchanging data with 

themselves, with other installations of their own product. There 

needs to be some truthiness to that. 

Senator FRANKEN. I want to ask you another question that was 

kind of in your answer to Senator Murray. Because your testimony 

31 

also highlights the new healthcare payment and delivery systems, 

those models, the success that they have had in incentivizing the 

coordination of information and improving health, the coordination 

of patient care, and in eliminating market incentives for providers 

to hoard their patients’ health data because they are being paid for 

outcomes. 

Based on this experience with the Comprehensive Primary Care 

Initiative that you write about, a multi-payer medical home model 

being tested by CMS’s Innovation Center, how can we focus more 

on these value-based reforms instead of just compliance with meaningful use? 

Dr. KENDRICK. I am glad you asked that. Earlier, the comment 

was made that perhaps we should delay Stage 3 of meaningful use, 

and I want to make sure it is clear that there are actually two programs. 

There is the meaningful use program, which affects the doctors, 

and there is the EHR health IT certification program, which moves 

forward the technology. I would certainly say that the technology 

needs to continue to move forward, but that the rapid deployment 

of these value-based payment models may well help to accomplish 

the things that were intended in Stage 3 of meaningful use anyway 

but will do so with the full and vested interest of the providers 

being onboard. 

I would not want to slow down progress on the technology side 

because the EHR vendors certainly have some ground to cover, especially to support value-based payment models. If we can get the 

accelerated adoption of value-based payment models, the providers 

will be very much in support of interoperability. 

Senator FRANKEN. In Minnesota, we like value-based models because we are good at them, and we kind of lead the country in that. 

I want to keep incentivizing—I want to keep implementing those 

as smartly, as intelligently, but as quickly as we can and robustly 

as we can. 

We were getting to talking about standards, and I think there is 

some dispute here about whether the industry does its own standards or whether the Government dictates these standards, but can’t 

we put in standards for operability, interoperability? 

What is the dispute here? I mean, why? Can I hear both cases? 

I know I am out of time. 

Mr. BLACK. I will take a swing at that. The Government has put 

standards in place, which we have been talking about today, about 

what is required inside of, if you will, a packet of information that 

goes back and forth from an Allscripts system to a Cerner system 

to an Epic system. Those standards actually have a great deal of 

information that make the exchange of that information possible 

and make that important to be consumed by the caregiver. 

What we are working on and what I think that the debate is 

about is, there is an electronic exchange of information. If people 

are blocking that, punish them. They should not do that. 

The standards allow us, even if someone is trying to block that, 

for us to auger in and get that data out anyway, and then we can 

liberate or emancipate, or whatever the word is going to be, to go 

get that data. We actually do that each and every day. 

32 

We connect to over 350 different electronic medical record systems in the United States. ONC certified a lot of systems to be certified for MU2—MU1 and MU2. We connect to over 350 of them 

in practice today. 

That is an important thing to get the connectivity done. Once you 

have them connected, however, you have to put the context of the 

way it was connected in practice. 

Senator FRANKEN. Sorry to cutoff your answer, but I am way 

over my time, and if there is a really short response to that? 

Dr. KIBBE. Yes, one very short response is finish what we have 

done before we do something new. I think that is what you are 

hearing pretty loud and clear here. 

We have got standards. We have infrastructure for the use of 

those standards. It is working. It could be better. Don’t go off and 

do something entirely new until we have got that job done. 

Senator FRANKEN. OK. Thank you. 

Sorry. Sorry, Mr. Chairman. 

STATEMENT OF SENATOR ENZI

Senator ENZI. It is OK. I would remind the Senators that you can 

submit questions. These people have agreed that they would handle ones in writing. That is part of testifying, and that gives us an 

opportunity to ask even more technical questions that might bore 

the entire audience. I am used to doing accounting hearings. 

[Laughter.] 

I understand that. This whole topic fascinates me. I have been 

on the High-Tech Task Force for a long time, and when we first 

started talking about interoperability, we talked about Australian 

railroads. How, when you get to the middle of the country, you 

have to change from one train to another because the railroad 

tracks are different sizes where they meet up in the middle. 

We wanted to make sure that with health IT that the railroad 

tracks would meet, and people would have access to information. 

I have kind of a science fiction version of what we need to achieve 

in all of this, and I picture the day when I would be able to have 

a card in my wallet that has every bit of my medical information 

on it, every X-ray, every MRI, everything. 

That would be a lot of data, but I have watched what the data 

transition has been. I would even have access to this card so that 

I could record trips that I went on or bug bites that I got or falls 

that I have had so that any doctor that is taking care of me would 

have access to all of that information. It wouldn’t be a matter of 

them getting a hold of somebody to have the record transferred. 

I once fell down and had a bad ankle, and I got an X-ray. They 

said there wasn’t a problem, but a few days later, I was in Wyoming, and I was still having a problem. So, I went to the doctor, 

and they said, ‘‘Well, we will have to do an X-ray.’’ 

I said, 

‘‘Oh, no, no. I had an X-ray.’’ They said, ‘‘Well, it would be 

too hard for us to get that one. We will have to charge you for 

another one.’’ 

I have a whole series of questions here that I am not going to 

have a chance to ask. I will be submitting questions. 

33 

Dr. Kendrick, I was particularly interested in your comments 

about the need for a lemon law, and I won’t have you expand on 

that at this moment. 

Instead, I would like to know what you see as some of the incentives now for information sharing across providers and settings and 

how the market responds to that? How do you see vendors responding to these market forces? 

Dr. KENDRICK. I think the message we get from our providers, 

as we try to connect them—in fact, I was on the phone with a physician group just yesterday kind of arguing with their vendor about 

the $40,000 fee and the 9-month timeline to get the interface built. 

I think the providers have bought in. They are ready to do valuebased payment models, but they can’t get their technology to keep 

up with them in moving that direction, which is why I cautioned 

against slowing the certification process. 

Even if MU3 was to slow down, the certification and the improvements in technology need to continue because I do think that 

the vendors have a big job. They have got a huge job, and they are 

critically important. 

At the end of the day, they are serving those who deliver care 

and receive care and need to meet their requirements. 

Senator ENZI. Dr. Mirro and several of you mentioned the need 

to have Stage 3 delayed. There is a security component here. Do 

you think your patients understand what data you have access to 

and what the protections might be for them and their personal 

health information? 

It is a difficult balance in some of these situations, but what 

risks do you see? 

Dr. MIRRO. Certainly, the privacy and security concerns are of 

utmost importance to patients and that we certainly do everything 

we can to protect their personal health information. A lot of my 

work is focused on delivering content to patients and in a secure 

fashion, specifically from remote devices, as I had in my testimony. 

Patients are concerned about the privacy security. There is the 

encryption and secured file transfer protocols that certainly, as of 

today, seem to adequately protect the patient’s information and 

particularly when we transmit this data to what we call a personal 

health record, where the patient can virtually store all of their information and access it. 

Right today, we do have adequate security privacy. Could it be 

better? Absolutely. I am not a cybersecurity expert. I am just a doctor. There are people working on this, and I think that everyone 

is concerned about the privacy security. 

Dr. KIBBE. My concern is data hackers will have Senator Enzi’s 

collection of data before I will have it or the patients will have it 

at this rate. Security is a big problem, and it has to be dealt with 

on a very, very strong basis going forward. 

I do think we are doing a pretty good job in terms of transport. 

Direct exchange is encrypted and identity validated before the exchange can go back and forth. That is not as much of a problem. 

The issue around Stage 3 meaningful use, and I would agree 

with Dr. Kendrick on this, is that we don’t want to put any barriers to innovation in health information technology in the standards development. We do—and I am speaking for the American 

34 

Academy of Family Physicians now, we do want to delay Stage 3 

meaningful use until we get the merit-based incentive payment 

system reorganized to go forward because there should be alignment between those payment—those value-based payment systems 

and whatever happens with respect to further development of 

meaningful use. 

Right now, I think your providers are saying, wait a minute, 

there is almost no relationship anymore between many of the objectives and metrics in Stage 3 meaningful use and the payment systems that we are being asked to comply with and to do well under. 

Dr. MIRRO. I just wanted to make one other comment. If we had 

update the HIPAA Act and unique patient identifier, that would 

help. Actually, not just the unique patient identifier but have some 

two-factor authentication, such as facial recognition or retinal scan. 

Patients, we will clearly know that we are dealing with the patient. 

We have that matched adequately. 

The vendors spend a lot of effort and resources in probabilistic 

matching, which is also a problem with any kind of health information exchange. 

Senator ENZI. Thank you. My time has expired. 

Senator Baldwin. 

STATEMENT OF SENATOR BALDWIN

Senator BALDWIN. Thank you. 

I want to thank the Chair and Ranking Member for this entire 

series of hearings. They have been very instructive. 

I also want to say that as a fellow member of the Appropriations 

Committee, I withheld going down there. Please excuse me when 

I depart immediately following the questions and I may submit 

some for the record in addition. 

I absolutely share the Chairman and Ranking Member’s commitment to finding the way to address deliberate data blocking. There 

are a couple of questions that I wanted to get into, starting with 

Dr. Kibbe and Dr. Kendrick. 

In your testimonies, you suggest that we need to increase transparency for all stakeholders to help address some of the problems 

that we see with data blocking and promote interoperability. I 

wanted to get a little bit more granular about how we create this 

transparency. 

What exactly needs to be measured and reported by healthcare 

providers, as well as obviously by EHR vendors, for us to determine 

if data blocking is occurring or if progress is actually being made? 

Dr. KIBBE. I will take the first crack at that. One thing that was 

very, very useful when e-prescribing was being integrated into electronic health records, and what we are seeing now is analogous to 

that in some ways. We are seeing health—Direct information messaging and transport of files integrated into electronic health 

records. 

One of the things that would be very helpful, which was done 

with e-prescribing, is for people to actually see the software. Is it 

immediately easy to use? Is it familiar? Are pieces lacking? Et 

cetera, et cetera. 

35 

This was done with e-prescribing largely because of the industry’s backing of that. I have been a proponent of getting our industry to do the same thing. That is one example. 

Senator BALDWIN. Transparency with technological capabilities 

and software is part of—— 

Dr. KIBBE. Yes. 

Senator BALDWIN. OK. 

Dr. KIBBE. Being able to see what you get and what you would 

buy if you used it. 

Senator BALDWIN. Dr. Kendrick. 

Dr. KENDRICK. There are three things. 

No. 1, the section of contracts dealing with interoperability needs 

to be transparent, at least that part, because there are so many 

hidden things in those contracts. 

No. 2, the process around surveillance should be transparent, at 

least when a complaint is found to have merit. Everybody is innocent before proven guilty in that model. 

And No. 3 is, I alluded to earlier, we need a good metric for interoperability, a measure or two, a number that we can look at. We 

have got a couple of numbers we use in our health information exchange, which are a little bit complex to go into here, but I would 

be happy to share details on those. 

Senator BALDWIN. If you would, I would love to have you answer 

that in more detail because obviously, transparency and metrics is 

going to be helpful. I suspect in some of the data gathering that 

you are talking about, we are going to be comparing apples to oranges, and we will really need to figure out a way to make the data 

that is, we hope, provided in a more transparent way relatable to 

one another. 

There has been a number of folks who have talked about how a 

move to value-based payment models is going to improve the very 

topic that we are talking about. I wonder if you could just take a 

moment, given that there are acknowledged instances where it is 

the healthcare providers that are unwilling to share the data because of economic incentives. 

If you could sort of walk through why our current fee-for-service 

system discourages and other similar business models discourage 

health systems from exchanging data, and whether in our payment 

system reform that is ongoing and we certainly will receive a lot 

of future attention, what Congress could be doing to help address 

that aspect of data blocking? 

Dr. KIBBE. In a word, risk. Because if you don’t have risk for patient outcomes, then in a fee-for-service model, we duplicate tests. 

We don’t coordinate care very well because we are not responsible 

or held responsible for the costs that are incurred when the handoffs are made poorly. 

Senator BALDWIN. In fact, sometimes rewarded for that? 

Dr. KIBBE. We are sometimes rewarded. In most communities in 

America, the healthcare system is multi-vendor. There are 

Allscripts and Epic and Cerner and eClinicalWorks, and all those 

different vendors are out there. There are people who don’t use 

electronic health records at all, like home health, for example, or 

long-term care facilities may not have those. 

36 

What happens in a community that is starting to do accountable 

care is they recognize they have got to connect with all those people. Therefore, collaboration and interoperability becomes a must, 

not a nice to have. 

Dr. MIRRO. Could I comment on that just for a second? Because 

we are in a fee-for-service system, the systems are designed around 

charge capture, as I mentioned, in administrative datasets. Whereas, if we would go to a value-based purchasing model, now the system is really focused on clinical data capture. They become much 

more usable by clinicians. 

The nurses and doctors are all struggling on the usability issues 

of these systems, and the reason is it is a reflection of the payment 

model. 

Senator BALDWIN. Thank you. I will submit additional questions 

for the record. 

The CHAIRMAN [presiding]. Thanks, Senator Baldwin. 

I am going to wait until the end. Senator Bennet will be next. 

STATEMENT OF SENATOR BENNET

Senator BENNET. Thank you, Mr. Chairman. I appreciate the 

hearing very much and the testimony of all the witnesses. 

It is obvious that there is a lack of adequate oversight when it 

comes to the adoption of interoperable electronic health records. Ultimately, it is the providers and patients who suffer the most. 

In Colorado, I have heard both rural and urban providers complain about the cost, the time, and compliance issues they have had 

with electronic medical health records and the vendors. 

Dr. Mirro, in your testimony, you discuss the lack of governance 

around who is in charge of making sure that these electronic 

health records are interoperable. You also discuss our inability to 

take action against vendors who make interoperability difficult for 

providers and patients. 

To you and the other panelists, who should be in charge of this 

process, and what additional steps should Congress take to make 

that happen? 

Dr. MIRRO. I think ONC should provide that surveillance oversight, and Dr. Kendrick gave some examples of that. We need to 

have more transparency about the surveillance system and which 

vendors are really on the watch list, if you will, so that health systems and clinicians can connect. You see what is going on. 

The system that is in place just needs to be strengthened. I don’t 

think we need to develop a new system. More transparency on the 

process and also exposure of the few bad actors. 

Because I think, far and away, the majority of vendors are actually all trying to do the right thing. They are definitely concerned 

about patient safety and personal health information and protecting that and behaving the right way. We could do more to just 

encourage that. 

A surveillance system that is working and functional would help 

improve that. 

Senator BENNET. Does anybody else have a view? 

Mr. BLACK. We are also getting together as a vendor community 

where we are building our own standards for the patient identification issue that is important for all of us. Identifying the correct paVerDate Nov 24 2008 16:06 Aug 09, 2017 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6601 S:\DOCS\95737.TXT CAROL
37 

tient is a big piece of making sure that as a clinician, I actually 

trust the source system that is sending me clinical information 

about somebody. 

If I have a doubt about the fact that it is really Bob Jones, I 

probably won’t administer the care that I think they deserve based 

on the information I received from a source that may not be 100 

percent verified or trusted. 

We are getting together through different organizations in order 

to come up with a set of standards by which we can identify at a 

national basis the patient, and we are doing that independent of 

any regulations or, excuse me, independent of any Government 

oversight. 

We just think it is a problem that has to get solved. It is a problem that has been punted down the road, and we are saying it 

needs to be done. 

Dr. KENDRICK. I run a nonprofit health information exchange, 

and we have tremendous success in addressing some of these 

issues. Our governance is those who receive care, those who deliver 

care, and those who pay for care. 

Everyone else is supportive to those three types of stakeholders. 

Those perspectives, I believe, are the ones that matter and the ones 

that should be guiding these efforts. 

Senator BENNET. On behalf of the providers in my State and 

those that all of you represent who face a multitude of requirements and compliance issues around electronic health records, 

what do each of you think is the most important thing for us to 

understand from the provider’s perspective when crafting and making changes to the current health IT policies? 

Mr. BLACK. I spend a lot of time on the road with our clients, 

and they are very concerned about the comment that was made 

earlier in these proceedings about the amount of time that they 

spend entering data into the system. Was that data important 

about the care of the patient? 

If it is administrative data, if it is data that be compliant with 

a set of administrative things that were, if you will, ‘‘pushed down 

by the Government,’’ that is where they complain. It is not always 

apparent to them that these things that we are collecting are important. 

There is a lot of quality information that we are collecting that 

are important. It may not be important to their specific practice, 

but it is important to that population that they serve both from a 

quality metric standpoint, but also from a future research basis, 

which, depending upon who you talk to, which constituent you are 

working with, that may not be as obvious to them at that time. 

Dr. KIBBE. Yes, what we hear is it has been too much, too fast, 

with not enough time to reflect and to digest the things that we 

have learned about what works and what doesn’t work. That is 

really the bottom line. 

That, and focus on the issues that are really important and are 

relevant to future value-based payment systems. Those are roughly, in order of importance, interoperability, the ability to report on 

outcomes and report on quality, and third, security. 

Those are the three critical issues that we need to pay continuing 

attention to before we go off and do a whole lot of other things that 

38 

may be very worthwhile, but are too much, too fast, and without 

enough resources and time to digest it. 

Dr. MIRRO. As a physician who does provide care to patients, I 

can tell you the usability issues, as Paul pointed out, are huge in 

every system. We have to get that right, and it is because there is 

too much time in documentation to satisfy meaningful use. It has 

deteriorated the quality of the office visit for the patient. 

We are spending more time with documentation. You are turning 

very highly trained clinicians into clerical people, basically. That is 

what happens. 

One of the unintended consequences of this, shortage of 

healthcare in rural America. I live in a rural area. The health system I work for has seven hospitals, but we are very close—we are 

in farm area, and the older physicians in these rural towns are just 

retiring at a rapid rate. It is accelerated by just this very fact. 

We need to do usability testing in some way in the certification 

process. 

Dr. KENDRICK. I would just add one thing. I completely agree 

with my colleagues. The one thing I would add, though, is in these 

new models of payment, physicians are increasingly being judged, 

and rightfully so, by the satisfaction their patients have with their 

care. It might be time to have satisfaction scoring for the vendors. 

Senator BENNET. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

Senator Whitehouse. 

STATEMENT OF SENATOR WHITEHOUSE

Senator WHITEHOUSE. Satisfaction scoring for the vendors, they 

would love that. 

Thank you all for being here, and thank you for this hearing, Mr. 

Chairman and Senator Murray. I really appreciate it. 

A quick question to begin with. Dr. Kendrick, you mentioned hidden things in the contracts. There were reports to ONC that gag 

clauses in some of the vendor contracts prohibit the provider from 

actually complaining about what is wrong in the contract. 

Can anybody on this panel see a single reason why those contracts should have gag clauses in them? 

Mr. BLACK. I cannot. 

Dr. KENDRICK. No. 

Senator WHITEHOUSE. Four noes. OK, let the record reflect that. 

Thank you very much. 

Mr. BLACK. You are welcome. 

Senator WHITEHOUSE. I am concerned about the meaningful use 

program having kind of outlived its original usefulness, and to the 

question of how it might be redirected, there are two things that 

I hear a lot from my home State. One is that there has been precious little support for health information exchanges compared to 

support for and testing of doctors and whether they have got the 

equipment running on their desk right. 

That makes it kind of a bank shot, to use a pool metaphor, at 

supporting health information exchange when, in fact, if you have 

really vibrant health information exchange, it becomes an almost 

inevitable part of anybody’s business model because it is working 

well. 

39 

I think we have got it upside down between the extent to which 

we support health information exchange versus the extent to which 

we put mandates and responsibilities and equipment and credits 

and everything onto doctors’ desks. 

The second is that two of the key transactions in the healthcare 

equation, one is the loop between skilled nursing facilities and hospitals, which is a very unproductive loop. The second is patients 

who have significant behavioral health issues for whom necessarily 

their behavioral health provider is their medical home because it 

is their behavioral health provider who makes it possible for them 

to negotiate the rest of the system. 

Leaving out behavioral health and leaving out skilled nursing facilities seem like very significant oversights. Starting with Dr. 

Kendrick, I would like to ask you to comment on—I know you run 

an HIE, so I am particularly interested in yours. We have got a 

really good one in Rhode Island. Laura Adams runs CurrentCare 

very, very effectively, and we are pretty much out front with you 

guys on this. 

I would be interested in the panel’s thoughts on those two questions. If you could just keep them brief and fill in later, I have got 

another question I would like to fit in, too. 

Dr. KENDRICK. OK. I will try to be brief on these. One, transitions of care are critical. Agreed. 

Senator WHITEHOUSE. Particularly those skilled nursing facility 

and behavioral health omissions. 

Dr. KENDRICK. Yes, particularly those. One thing we need to recognize, at least as a clinician, when I write an order to transition 

a patient from one place to another, that is generally the action 

that makes it happen. That is an order. 

Currently, we don’t track that as an order, right? We fax something somewhere or we send a secure email somewhere, but I don’t 

know what happened to it after it got sent. I don’t know that it 

got—the patient showed up. I don’t know that the loop got closed 

and the record got back to me. 

I would recommend that we shift our thinking around transitions 

of care to start thinking about them as an order that gets tracked 

with a status, just like a prescription or a lab test or anything else. 

Senator WHITEHOUSE. Should we move our focus more toward 

health information exchange support, as opposed to—— 

Dr. KENDRICK. That would be the appropriate clearing house, so 

to speak—— 

Senator WHITEHOUSE. For that? 

Dr. KENDRICK [continuing]. For those orders, I would suggest. 

Senator WHITEHOUSE. Got it. 

Dr. KENDRICK. Your second question, your second question was 

about—remind me. 

Dr. MIRRO. Behavioral health. 

Dr. KENDRICK. Oh, behavioral health. On behavioral health, we 

have actually—— 

Senator WHITEHOUSE. Why are they outside of meaningful use 

when they, in fact, are the medical home for—— 

Dr. KENDRICK. Right. 

Senator WHITEHOUSE [continuing]. That set of patients? 

40 

Dr. KENDRICK. We have most of the community mental health 

centers in our State connected or connecting to the health information exchange, despite the fact that we have to jump through incredible hoops to meet the provisions of 42 CFR that permit—that 

prevent certain data from moving—— 

Senator WHITEHOUSE. We are doing it, too, and it is a nightmare, 

and it is not supported by the meaningful use program. 

Dr. KENDRICK. It is really—if you could fix something, please fix 

that. 

Senator WHITEHOUSE. OK. 

Dr. KENDRICK. Because those patients are getting cheated. 

Senator WHITEHOUSE. I am about to be out of time. Let me offer 

two things. One, I share the experience that Senator Bennet had 

of going around my State and having doctors’ offices, having hospitals, having skilled nursing facilities, having people say, ‘‘Oh, my 

God, what a nightmare to go to electronic health record.’’ 

If you ask them the next question, ‘‘Would you go back?’’ They 

all say, ‘‘Oh, my God, no. Thank God, we got through that.’’ 

Mr. BLACK. Right. Right. 

Senator WHITEHOUSE. ‘‘But this is really a big, big improvement 

for us.’’ While it was painful, it was—I am getting a lot of nodding 

heads from the panel as well. 

The second thing is that I heard what Mr. Black said about the 

quality reporting and the burden of that. That is really important, 

and I would suggest to you that it has a patient component as well. 

If we load up the system, as I think we have, with a whole broad 

array, a multiplicity, a babble of quality reporting, then it creates 

a huge burden for the doctors who have to meet the regulatory burden. Also it blunts or blurs any kind of a public signal that doing 

badly on the quality reporting ought to on occasion. 

Somebody comes up with a really bad quality report on something, and the next thing they are saying, ‘‘Yes, but I got these 

other five really good quality reports.’’ 

Mr. BLACK. Right. 

Senator WHITEHOUSE. The whole thing just turns into a mess. I 

would encourage you and ask it as a question for the record to 

make recommendations on how we could simplify the quality reporting so that it has real consumer impact, in addition to any 

questions about undue regulatory burden. 

Mr. BLACK. There are a lot of quality ratings that are out there 

today. There are star ratings that are out there that are actually 

pretty effective at being able to do that. You can rate the institution. You can rate the provider. You can rate the organization. 

There is actually a fair amount of that data that are out there, 

and that data wouldn’t come across again had you not done the 

broad mass adoption of these systems. That is what MU1 did. 

While it was tough, while it was hard, while $30 billion was 

spent, there is no way we could have these conversations about any 

of the rest of these things, including HIEs, if they—they have to 

connect to something. They have to connect to the electronic medical record that is in that doc office or that hospital. 

To me, that was a great amount of money that was spent, a lot 

of time and effort. But you hit the promise of this, which is that 

41 

you can interconnect these. You can get data. You can get quality 

information. And you can rate them. 

Over time, because of a consumer focus, there will be a lot of 

transparency on these data that are going to force additional 

changes in behaviors from providers and organizations in order to 

become more relevant to consumers. 

Senator WHITEHOUSE. Thank you, Chairman. 

The CHAIRMAN. Thank you, Senator Whitehouse. 

Mr. Black, who owns my personal healthcare information? 

Mr. BLACK. You do. 

The CHAIRMAN. Thank you. 

No. 2, is there a consensus or are there surveys about the actual 

percentage of time that physicians spend on documentation? Anyone know of that? 

Dr. MIRRO. I could probably answer that. Actually, I am part of 

a Federal grant that is coordinated by the University of Nebraska, 

and there are several sites. Duke University, University of Nebraska, Christiana Healthcare in Rhode Island is participating 

also. 

The CHAIRMAN. Do we know what the percentage is? 

Dr. MIRRO. Yes. It is, at least from that experience, the data that 

we have, preliminary data because we are in the midst of this 

grant, we are spending well over 15 minutes per office visit. We 

have a 15-minute office visit. There is quite a bit of variation between individual clinicians, right? 

We have some high users that maybe will only spend 5 minutes 

documenting. 

The CHAIRMAN. So 30 percent? 

Dr. MIRRO. At least 30 percent. 

The CHAIRMAN. Do any of you know of any other surveys, reputable surveys about the time doctors spend? 

Dr. KENDRICK. I can’t give you anything reputable, but I can tell 

you my department, my academic department runs the electronic 

health record system for the university. The majority of notes are 

signed between 10 p.m. and midnight. 

The CHAIRMAN. Yes. 

Dr. KENDRICK. That is the busiest 2-hour window for documentation. 

Dr. KIBBE. It is a real problem. 

The CHAIRMAN. Mr. Black, of the people you work with, do you 

have any idea? 

Mr. BLACK. It depends on the specialty type. In some cases, people will say they are actually faster with electronic medical record, 

and other people will say it takes them more time because of the 

charging of the other documentation that is provided, and they actually are doing it versus, as was said earlier, perhaps a clerical 

staff. 

The CHAIRMAN. There has been some discussion about delaying 

meaningful use 3, about whether it is a good idea, whether it is a 

bad idea, whether to delay part of it, whether to delay all of it. I 

would like to ask each of you if you would summarize for me what 

you think the answer to that question is. 

Assume you were Secretary Burwell and you had it within your 

power, and you are looking ahead, and you are saying, ‘‘OK, we 

42 

have two big rules coming down in September or so,’’ which are 

going to establish the rules of the game, which will be implemented, which will go into effect, what, in a couple of years, something like that? 

Mr. BLACK. Correct. 

The CHAIRMAN. You have Mayo Clinic, as I mentioned earlier, saying, ‘‘all right, we are going to spend $1 billion over the next 

4 years, 500 employees, to finish the job.’’ You have others saying, 

‘‘we are terrified by the prospect’’, and you have half the docs not— 

paying penalties rather than participating. 

What would you move forward with, and what would you slow 

down in not to stop electronic healthcare records, but to gain the 

largest amount of buy-in and most effective use of it so that providers look forward to using it rather than dreading it? 

Then if you—and then after you are through, if you have time, 

if you would send me your written suggestion for that, that would 

be helpful to me. Dr. Kendrick, can we just go down the line? 

Dr. KENDRICK. Sure. I indicated earlier that meaningful use, in 

my mind, is separate from the EHR certification program, and I 

very much would recommend against slowing down the EHR—the 

advances in the EHR health IT certification program. 

There are some—there were important gaps—— 

The CHAIRMAN. Because vendors need to be—and others need to 

be able to rely on that and go ahead and do their work on that. 

Is that right? 

Dr. KENDRICK. Because we still—we have all heard we need improvements in workflow, and we need improvements in other components. In particular the next round of certification requirements, 

as proposed, fix some specific holes in interoperability that were in 

the last round. 

The CHAIRMAN. OK. 

Dr. KENDRICK. That I would proceed with. I tend to agree, 

though, that when major programs through MACRA and others are 

coming down the pike, it would be great if we could synchronize 

those efforts, have one set of measures, have one approach. 

I would only add one additional item, and that is these new payments models, this approach we are taking depends heavily on assessing value correctly. That means measuring value correctly. Our 

current architecture will measure value in a single practice, and 

the same patient can appear in several different doctors’ measure, 

right? 

What we care about as a nation is what is the health of an individual, and is it being improved? To do that, we have to measure 

at a higher level with the patient’s complete record available. 

I recommend that that needs to be a part of things going forward, or we will miss the boat on value-based payment, and we 

will be arguing over measures that aren’t valid. 

The CHAIRMAN. Dr. Mirro. 

Dr. MIRRO. As I testified, we want to delay Phase 3 meaningful 

use in its entirety. Phase 2 only—— 

The CHAIRMAN. Does that mean including the certification standard? So you disagree with Dr. Kendrick on that? 

Dr. MIRRO. I actually do agree with Dr. Kendrick on the certification side. On the eligible provider side, I am referring to, we defiVerDate Nov 24 2008 16:06 Aug 09, 2017 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6601 S:\DOCS\95737.TXT CAROL
43 

nitely need to delay Phase 3 meaningful use. Phase 2 we only have 

11 percent of eligible providers attesting right now. 

We have to actually analyze the impact of Phase 2 meaningful 

use on improvement and care and its impact within the efficiency 

of the health system because we have created incredible inefficiencies, as we have just discussed, with usability and workflow issues. 

We really have to digest the impact of Phase 2 meaningful use and 

continue to strive to simplify the requirements. 

The CHAIRMAN. Dr. Kibbe. 

Dr. KIBBE. Yes, we would recommend an immediate moratorium 

on Stage 3 until Stage 2 is fixed. I agree with my colleagues in the 

sense that there are parts of Stage 2 that need to be fixed and improved so that more providers and eligible hospitals can participate 

in Stage 2 before we go on to anything called Stage 3. 

In particular, the certification needs to be focused on and made 

better. Interoperability needs to be focused on and made better. 

The quality reporting we have talked about needs to be made better, and the security side of Stage 2 also needs to be fixed. 

The CHAIRMAN. Fix Stage 2 before we move on to Stage 3? 

Dr. KIBBE. Indeed. 

The CHAIRMAN. Mr. Black. 

Mr. BLACK. It is important that there is a bunch of information 

that is going to be gained out of these electronic medical records 

that are going to be further extended by MU3. I would suggest that 

we keep on the path we are on. We think it is going to be in the 

2018 timeframe. That is a long time from now. 

I need time to prepare for that, and so the sooner that we can 

get the specifications. We have to be done with those and get certified prior to these folks rolling them out. For me, it is important 

to get advance notification. 

There is a lot more patient information than patient benefit, the 

consumer benefit as a result of some of the regulations that I have 

seen around MU3. I also think from an interoperability standpoint, 

there is a lot of API exposure that we welcome the rest of the organizations to be exposed to. 

The CHAIRMAN. API exposure? 

Mr. BLACK. Yes, sorry. There are requirements in there for all 

vendors to expose more of their application programming interfaces. Allow third parties to innovate on top of platforms to allow 

other people to be able to go in and extract data out of their systems. That is what we do today. 

The CHAIRMAN. Build that for—— 

Mr. BLACK. That is a piece of the proposed legislation that we 

would support as well. We think it is good for America to have access at a detailed level to electronic medical records versus being 

reliant upon a specific vendor to give that to you. 

The CHAIRMAN. Thank you. 

If each of you could, even if it is just 1 page, just say if I were 

Secretary Burwell, here is what I would do this fall, that would be 

helpful to me and to other Senators. 

Senator Cassidy wanted to ask another round of questions, and 

he knows a lot about the subject, and I thought that was good. 

Why don’t we—I will go first to Senator Murray and see if she has 

44 

questions, then to Senator Cassidy and if Senator Whitehouse has 

some. Then we will conclude the hearing. 

Except, Senator Enzi, you may have—— 

Senator ENZI. No, no, I have learned as much as I can handle 

right now. 

[Laughter.] 

Mr. BLACK. Any accounting questions? 

The CHAIRMAN. All right. We will start with Senator Murray. 

Senator MURRAY. I would just submit any additional questions, 

but I do really do appreciate this panel and the information you are 

providing us. It has been a lot. We appreciate it. 

The CHAIRMAN. Thank you. 

Senator Cassidy. 

Senator CASSIDY. Mr. Black, when we spoke earlier, and you 

mentioned how you all have apparently your product, semantic 

interoperability. 

Mr. BLACK. Yes, sir. 

Senator CASSIDY. Wherever you go as a patient, there is an integration of the blood pressure in a standard format. You also mentioned in an earlier conversation that one person may mention 

weight in kilos, and the other person in inches, and the other person in feet and inches. How can you get—I am just asking, how do 

you get semantic interoperability? 

Because we are told we have to have a standard—— 

Mr. BLACK. Right. 

Senator CASSIDY [continuing]. That everybody use the same 

standard before we can have that and yet, apparently, you have accomplished. I am asking how can that be? 

Mr. BLACK. Yes, even inside of—we attached, as I said, over 350 

different electronic medical records today. Even though you may 

have one client who has one electronic medical record vendor, they 

actually may have different instances of that. 

Let me give you an example. We have one client, very large client, who has 44 different instances of the same electronic medical 

record vendor established across 186 different hospitals. You would 

think that by us plugging in and trying to determine a male/female 

status, that would be a very easy interface. 

In fact, because of the flexibility of the system, there are 25 different ways in which as you plug in, you read that information, it 

actually comes back to us in a different manner. We have to take 

that information and harmonize that information to make it say either male or female. 

It sounds very easy, but I am just telling you, the information 

systems the way that they are out there, the way that they are designed, the way that they are implemented can vary widely even 

inside of just one. 

Most places I go to have anywhere from 300 to 700 different systems. Our largest client today has 100 electronic medical 

records—— 

Senator CASSIDY. With that said, are you able to harmonize without—apparently, you are. 

Mr. BLACK. We are. 

Senator CASSIDY. Because you have semantic interoperability. 

There is some way to do a workaround aside from having everyVerDate Nov 24 2008 16:06 Aug 09, 2017 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6601 S:\DOCS\95737.TXT CAROL
45 

body sit down and say we are going to call it meters, or we are 

going to call it—— 

Mr. BLACK. Right. We take it, as I say, God is on the side of computers, and we are going to figure it out. There are algorithms you 

can say to read this SNOMED file and convert it to CPT. Take the 

CPT file, convert it to ICD–9. Take this ICD–9, convert it—— 

Senator CASSIDY. Got you. How do you define data blocking? Because you mentioned in your testimony, we must, and so how 

would you? 

Mr. BLACK. I would define it by somebody who knowingly is out 

blocking the data. The definition of that would be very difficult to 

enforce, but I do believe that there is very—a lot of people are not 

knowingly doing it. But to the extent that we had practices in the 

past, which this committee actually because of the questioning that 

you had, actually got some suppliers to change the way that they 

charge for that. That is extraordinarily important. 

The light that you are shedding on this has actually been very 

well received—— 

Senator CASSIDY. Let me ask each of you if you can submit for 

the record your definition of data blocking because that is important to us going forward. 

Next, on the House side, there is a bill, part of 21st century is 

a portion which says that if someone is found to data block, that 

they would be decertified. If you are a doctor and you just paid all 

this money and now your product is decertified, it is actually the 

physician that loses. 

If it is a small practice in Iowa or in Bunkie, LA, you are stuck. 

Is there some way to enforce a you can’t data block and if you do, 

you are busted without busting the doc? Dr. Kibbe? 

Dr. KIBBE. Yes. Part of the problem there is we are kind of in 

an all or nothing State right now, right? We need a better certification program so that in-the-field usability of these products is 

testable. If there are problems, they are available early, and the 

vendors and the users of those products have a chance to fix it. 

Senator CASSIDY. That doesn’t help those who have already purchased? 

Dr. KIBBE. No, it would because it would expose the vendors 

whose products are having problems or in usability early enough 

that they would have a chance to correct that—— 

Senator CASSIDY. OK. Let me go back to Dr. Kendrick. Dr. 

Kendrick, you mention that there are these gag orders. I had to 

press you to tell me that it was eClinicalWorks that is getting certified with a package which they then pull out and hide and then 

charge $10,000 in order to have access to. 

If you are under a gag order, you can’t really say, ‘‘Oh, my gosh. 

I am paying 10K a year for something which I should be getting 

for free.’’ 

How do we—you could have a gag order. You are doing a beta 

test, and you can’t report that it is a dog. Do you follow what I am 

saying? 

Dr. KENDRICK. Yes, in my written testimony submitted, it says 

that we are finding a fair amount of almost intimidation among the 

folks we work with, the practices we work with, that they are 

afraid to file these things themselves. Maybe because of a gag 

46 

order, maybe because of experience. Certainly when we filed one 

complaint recently and it got forwarded to the vendor, we got a 

note almost immediately from the vendor saying that they wouldn’t 

work with us anymore. 

Thankfully, an executive at the corporation decided it was worth 

that this really could be an issue. I would say in terms of—transparency has got to be there, and in terms of dealing with the 

next—— 

Senator CASSIDY. Should we outlaw gag orders? Should we have 

legislation that says, ‘‘my gosh, if you have got a dog, you can say 

I heard it bark’’? 

Mr. BLACK. Please. 

Dr. KENDRICK. I think we should. 

Senator CASSIDY. OK. 

Dr. KENDRICK. I would just add that in terms of dealing with the 

decertification, if you take away that threat, then there is no reason for an organization to comply, and I would suggest that perhaps the EHR vendor that becomes decertified should be compelled 

to reduce their prices to their practice—— 

Senator CASSIDY. How do we hold the doc harmless if she has 

bought a product which is now decertified? How do we keep her 

from being punished? Do we have a money back guarantee? 

Dr. KENDRICK. That is where I was going is maybe the EHR vendor has to reduce its fees or charge no fees until they are certified 

again. 

Senator CASSIDY. We would allow a grace period for the physician to continue with the decertified record? 

Dr. KENDRICK. We have to make the data portability real. I need 

to be able to strike my data and move on to another vendor. 

Senator CASSIDY. OK. Thank you for allowing a second set of 

questions. 

The CHAIRMAN. Thank you for your participation. 

Senator Whitehouse. 

Senator WHITEHOUSE. Senator Cassidy, put me down as a cosponsor—— 

[Laughter.] 

Senator WHITEHOUSE [continuing]. On your legislation to restrict 

these gag orders, and we will work together on that. I am having 

a very enthusiastic agreement from the entire panel on that point. 

I had just one specific question since I get another round, and 

this has to do with Dr. Kendrick’s written testimony with respect 

to the part of ONC’s certification program that requires data portability. The quote I have from your testimony is that few vendors 

appear to offer this functionality as intended, and I would like you 

to have the next couple of minutes to elaborate on what you meant 

by ‘‘few vendors appear to offer this functionality as intended.’’ 

Dr. KENDRICK. The reason we came across this functionality is 

because it is another option for interoperability. Unfortunately, 

Stage 2 of meaningful use required that the standard document be 

created and that the provider be able to export it, but not that the 

exporting of that document be automated. 

Many vendors buried that export three buttons down, three 

menus down, and force a manual process. Until the next round of 

EHR certification comes out and hopefully fixes that, we are stuck 

47 

with other options that are written into the policy. One of those is 

data portability. 

Senator WHITEHOUSE. Just so I understand it, what we would 

like to see—what CurrentCare has accomplished in Rhode Island 

is that the record is kind of automatically populated with data. If 

you go out and have a CAT scan or if you pick up a pharmaceutical 

or get a test of some kind, it loads more or less automatically—— 

Dr. KENDRICK. It moves where it needs to go automatically. 

Right, right. 

Senator WHITEHOUSE. Exactly. What you are saying is if that 

doesn’t happen, somebody has to page through several—— 

Dr. KENDRICK. Right. 

Senator WHITEHOUSE [continuing]. Screens and then hit ‘‘send’’ 

before it—— 

Dr. KENDRICK. What happened is, we discovered the data portability clause, which is the requirement that a batch export be possible of these CCDA files, these standard files, and we can do that 

on a nightly basis and use it. 

Unfortunately, when we have gone to now several vendors to say 

where is your batch export functionality, they can’t demonstrate it 

to us, and many have to come in and actually rewrite code to make 

it happen. We filed a complaint, and the first one of those has been 

found to have merit. 

It did require some pretty significant conversation between ONC 

and the certification body because, remember, the certifying body 

tests, ONC writes the test. The question was whether the test adequately tested that functionality, and so things slipped through the 

door. 

Senator WHITEHOUSE. Got it. OK. 

Thank you, Chairman. It is a technical issue, and it can drive 

people into a state of stupor. 

Dr. KENDRICK. Sorry. 

Senator WHITEHOUSE. It is also really, really important, and the 

panel has been terrific. 

The CHAIRMAN. We need to see if we can come to some consensus 

here on the committee about what we think about this. Senator 

Murray and I had breakfast with Secretary Burwell today, and we 

talked a little while about it. Of course, Secretary Burwell and the 

President are very interested in changing the way physicians are 

paid, value-added, and you are saying there is a relationship between that and better use of this. 

Those are relevant things, but there are big decisions to be made. 

If any adjustments are to be made, they probably need to be made 

this fall, and I don’t want to recommend adjustments that are not 

the right adjustments to make. We want to complete our work on 

this by this fall and understand that there are steps. If there are 

four or five steps that can be taken to make the electronic 

healthcare system work better and if they require legislation we 

can deal with that early next year. 

If it is something the Secretary can do, we can talk with her 

about it and let her do it. That would be much more preferable to 

do it that way because it could get done more rapidly. 

Let me ask, this is an off-the-wall question, and it may sound 

like a really stupid question. I am old enough not to worry about 

48 

things like that. Should we be defining—are we being too ambitious with interoperability? 

Should we say that we should have interoperability to just an extent? If what we are really talking about is making sure that information, let us say about me, is available at all the places where 

I might have gotten healthcare. 

What if a rural doctor somewhere where I might have gone after 

a fishing trip says I will send you—if you are going to go see your 

doctor next week, I will fax it to him? I will FedEx it to him. I will 

keep it according to a certain standard that you tell me to keep. 

Why in this age of communication where we have many different 

ways of getting information to people, when the usual time that 

you need information about your healthcare, I would assume, is a 

scheduled appointment with a physician or a hospital, where a doctor in some other place would have time either to fax the information he or she has or to Fed Ex it by the next day or UPS it? 

Or maybe, maybe we just say that interoperability ought to apply 

to this much information and these kinds of data, and it is too ambitious to try to go beyond that. It is just we just can’t do that in 

a system as big and diverse as ours. Is that a really ridiculous 

question, or is there an easy answer? 

Dr. Kibbe. 

Dr. KIBBE. Let me—there is an easy answer. Because doctors and 

the hospital systems and medical practices don’t want to go outside 

their electronic health record to exchange health information. They 

want to work within that electronic health record interface. 

The CHAIRMAN. Oh, I don’t know that is true. I know some very 

good doctors who keep a separate drawer filled with written information about their patients. 

Dr. KIBBE. They may do that. When the information flow is required to go from one place to another, you really don’t want to go 

to a separate Web browser over here or go to a fax machine over 

here. That is inefficient. That is extra documentation. That is extra 

cost for everybody. 

One of the things that I meant in my fixing of the Stage 2 meaningful use is that we have an infrastructure, we have standards, 

and we need to fix those and make them a little better. 

For example, a Direct message ought to be acceptable with any 

kind of attachment, not just a CCDA. A PDF document, a Word 

document, a file image. Those ought to all be acceptable means of 

transfer of documentation from within the electronic health records’ 

current standard for exchange. 

Mr. BLACK. I don’t think you spent $30 billion, we did. You have 

to take it to the next level. Otherwise, you are going to have just 

a great, big, huge community and country full of silent information 

that is not expandable, and it doesn’t really benefit the patient. 

In order to get that information to an interoperable manner 

through an HIE, whatever it has to be, in order for it to be used, 

though, by a clinician, you have to have all the information about 

that patient, irrespective of which EMR that they are in across the 

community. 

Then when I log in to my patient and my patient is in front of 

me today, I want to see that there is additional information in the 

community about that patient that is going to change my mind. At 

49 

the University of Pittsburgh Medical Center today, we sit on top 

of Epic and Cerner, and when they click on the community view, 

that clinician, 60 percent of the time, makes a different clinical decision because of the fact they saw the totality of the patient’s 

record, not just what was inside of EMR 1 or EMR 2. 

The CHAIRMAN. OK. 

Mr. BLACK. We now have 100 of them attached to that, I can 

promise. 

Dr. KENDRICK. The issue—I would zoom out just a little bit and 

say, or a lot and say that this—the health of America and the success of our industries in the world depends on solving this issue appropriately. If I were to compare healthcare to banking, it is about 

1965 in healthcare. 

We just don’t have electronic transactions like we need them. We 

have lots and lots of labor force dedicated to things that haven’t 

been done manually in banking for decades, and we won’t be able 

to compete on the world stage as a nation and have a healthy 

workforce if we don’t solve this. 

The efficiency gains from interoperating electronically far exceed 

the paper processes. 

Dr. MIRRO. I agree with my colleagues wholeheartedly, and we 

cannot have enough interoperability. Remember, we are trying to 

have a patient-centric electronic record. It is actually about the patients, and that is we want to get to that stage where the patient 

is holding all their information, and we have patients that are 

using a highly functional personal health record so that their data 

is stored in a PHR, and that could be accessible from any site, even 

rural America. 

The CHAIRMAN. I thank all of you for coming. I would ask once 

again if you could send me in 1 or 2 pages of what you would do 

if you were Secretary Burwell if faced with decisions about these 

two rules that come down in September about electronic healthcare 

records. I would appreciate it very much. 

The hearing record will remain open for 10 days. Members may 

submit additional information for the record within that time. 

Thank you for being here. The next HELP Committee hearing 

will be Wednesday, July 29. 

The committee will stand adjourned. 

[Additional Material follows.] 

50 

ADDITIONAL MATERIAL 

AMERICAN COLLEGE OF CARDIOLOGY, HEART HOUSE, 

WASHINGTON, DC 20037–1153, 

June 16, 2015. 

Hon. LAMAR ALEXANDER, Chairman, 

HELP Committee, 

U.S. Senate, 

Washington, DC 20510 

Hon. PATTY MURRAY, Ranking Member, 

HELP Committee, 

U.S. Senate, 

Washington, DC 20510 

DEAR CHAIRMAN ALEXANDER AND RANKING MEMBER MURRAY: The American College of Cardiology (ACC) is a 49,000-member medical society that is the professional 

home for the entire cardiovascular care team. The mission of the College is to transform cardiovascular care and to improve heart health. The ACC leads in the formation of health policy, standards, and guidelines. The College operates national registries to measure and improve care, provides professional medical education, disseminates cardiovascular research and bestows credentials upon cardiovascular specialists who meet stringent qualifications. The ACC also produces the Journal of the 

American College of Cardiology, ranked No. 1 among cardiovascular journals worldwide for its scientific impact. 

The ACC has a vested interest in complete interoperability of health information 

technology not only because of its diverse membership of cardiovascular care team 

members including physicians, nurse practitioners, nurses, and practice administrators, but also because of its operation of five hospital-based, one outpatient, and two 

multi-specialty clinical data registries. 

The College would like to applaud you and your respective staff for taking the initiative and working to accomplish specific goals related to interoperability of EHRs. 

The College appreciates the opportunity to provide input and encourages you to address these pertinent issues. 

The ACC views the following as key priorities that should be addressed related 

to EHR interoperability: 

VENDOR DATA BLOCKING

Issue: The ACC has been on the record with the Senate HELP Committee in 

bringing the issue of ‘‘vendor data blocking’’ to the forefront and the College is appreciative of the committee’s responsiveness and eagerness to address this issue. 

The ACC views vendor data blocking as one of the largest barriers to EHR interoperability. EHR vendors charge exorbitant fees to transfer data from hospital to 

hospital or hospital to physician office, undermining the very purpose of EHRs. 

Many times, hospitals are in a better financial position to incur these costs. Physician practices, which are typically smaller and have fewer resources, are not in the 

position to absorb these costs. 

Example: For each patient, cardiologists are often required to reference several 

tests to obtain a complete understanding of a patient’s condition. These required 

tests are sent to various labs, each of which operates its own separate EHR system, 

often administered by different vendors. In order to fully exchange information, 

EHR vendors charge physician practices upwards of $20,000 to fully interface with 

each lab’s EHR system. While this is usually a one-time fee, many physician practices cannot absorb these unexpected startup costs. In order to provide appropriate 

and effective levels of care to their patients, these providers face fees to interface 

with necessary ancillary systems to facilitate the transfer of data between settings. 

Once the connection is established, there are often additional charges for the exchange of information. The College feels these exorbitant fees must be brought 

under control. 

Solution: The ACC acknowledges that an initial fee to establish a connection 

could be appropriate. Our concern lies with the amount of fees these vendors have 

arbitrarily established. Perhaps a solution could be for vendors to work these fees 

and others into the initial agreement signed with physicians, including (but not limited to) bundling open application programming interface (API) costs into the overall 

maintenance fees. This would require vendors to be up front and transparent with 

their pricing both at the time of purchase and throughout the use of the implemented EHRs and the peripheral elements included in these contracts. Additionally, 

it would be ideal to know up front the costs associated with purchasing interfaces 

51 

to exchange with another vendor’s EHR. Penalties should also be established for 

vendors whose actions prohibit the exchange of data under any circumstances, 

which leaves the practice without options to solve the problem. The ACC looks forward to working with the committee to determine the most appropriate way to address this issue. 

EFFECTIVE EHR STANDARDS

Issue: The Office of the National Coordinator for Health Information Technology 

(ONC) has attempted to establish effective common EHR standards since the passage of the Health Information Technology for Economic and Clinical Health 

(HITECH) Act in 2009. The Certified EHR Technology (CEHRT) criterion (2011, 

2014, and the proposed 2015 criteria) aims to set a floor for certification to avoid 

stifling innovation while still working to require EHRs to meet the specific needs 

of clinical settings. With the current EHR standards in place, clinicians not only 

face continual challenges exchanging the simplest elements of data between EHRs— 

that have all met the EHR standards in place at the time of their certification— 

they also face basic usability issues. Despite these issues, there is still a widely felt 

concern that if effective common EHR standards were to be established, they would 

be too prescriptive and would stifle innovation. 

Example: As a part of certification, EHRs are tested to meet varying criteria and 

specific definitions. The criteria are tied to components of the Meaningful Use program such as computerized order entry, secure messaging, and e-prescribing. Definitions address other items of the Meaningful Use program as well, such as how a 

‘‘base EHR’’ is defined, along with other items such as how patient health information is captured and how to import, calculate, and report clinical quality measures. 

This is in addition to base requirements relating to privacy and security, accessibility-centered design, and safety-enhanced design. Once the EHRs are certified and 

implemented, many times data received by a certified EHR from other certified 

EHRs populates in inappropriate fields or the data is received in a format that is 

unusable. For example, a clinician may receive a chart mapping a patient’s blood 

pressure rather than individual data points. Another example is that clinicians in 

the outpatient setting frequently refer their patients to a hospital across the street 

from their office for procedures. The inpatient setting, however, often uses a different EHR and the different systems cannot communicate. When patients are admitted to the hospital, clinicians have to print out their notes and send a copy to 

the hospital so the notes from the clinic can be incorporated into the hospital’s electronic records for the inpatient setting. This information is often scanned and inserted into the hospital’s EHR as a PDF and is therefore far less usable. Thus, in 

order to truly achieve health information exchange these providers and their small 

clinics are forced to incur additional fees to replace their outpatient EHR vendor to 

match the hospital’s system and make the records interoperable. 

Solution: The ONC should provide a clearer path to certification that includes 

an enhanced focus on usability and interoperability. These standards could include 

the ability for systems to connect with multiple Health Information Exchanges 

(HIEs). The most important aspect of a standard is that they be clinically relevant 

and useful, as would occur if the standards were created in cooperation with specialty societies such as the ACC. Through its rigorous process of creating clinical 

guidelines, societies such as the ACC are well-equipped to make these specific determinations as to what standards need to be applied and how they should be applied. 

In addition to adjusting the certification criteria, thorough testing must be performed not just of the EHR itself but in exchanging information with other EHRs 

and other actors in the health IT sphere such as HIEs and registries. This can lead 

to the higher level of bi-directional data exchange that we need in order to achieve 

the true benefits of health information exchange. 

POST-CERTIFICATION SURVEILLANCE OF EHR SYSTEMS

Issue: Since the passage of the HITECH Act in 2009, the Federal Government 

has invested over $30 billion in EHRs. Currently, no programs exist to ensure that 

existing EHRs are functioning properly. Implementation of a post-certification surveillance program of EHRs would add value to the Federal Government’s already 

substantial investment and set the Nation on a path of complete interoperability of 

EHRs. 

Solution: The ACC requests that ONC or the HHS Secretary conduct post-certification surveillance of EHRs to properly evaluate what elements are effective and 

what elements are not working with respect to basic usability and interoperability 

functionalities providers require of EHRs. This includes the removal of contract gag 

clauses to enable documentation by the Federal Government of any data portability 

52 

issues and to provide for further transparency in pricing. It should be clearly stated 

that the burden for upgrades would pass to the EHR vendors rather than physician 

practices or hospitals. Additionally, a quarterly report from the Federal Government 

summarizing the surveillance findings would further aid in fixing usability and 

interoperability issues of CEHRT. The ACC applauds CMS for launching the initiative to collect feedback via email from patients, clinicians, and others whose health 

data was stymied. 

REEVALUATION OF HIPAA AND SECURITY OF DATA

Issue: The ACC operates five hospital-based, one outpatient, and two multi-specialty clinical data registries within a suite of registries collectively known as the 

National Cardiovascular Data Registry (NCDR). As a result of the Health Insurance 

Portability and Accountability Act (HIPAA), hospitals and health systems within 

which the NCDR conducts business require security contracts to transmit data. The 

ACC understands that certain measures must be taken to comply with HIPAA and 

ensure data security. However, HIPAA has resulted in overly risk-averse interpretations of an almost 20-year-old law that was based largely on paper data storage. 

This in turn has created unnecessary demands from multiple layers of compliance 

officers with several layers of review which may not actually be relevant or afford 

the best protections in a digital, mobile-enabled environment. 

Example: Compliance officers from larger health systems and academic medical 

centers require NCDR to complete over 40 pages worth of security questionnaires 

that are unique to their own institutions. It may be possible for larger vendors with 

large numbers of staff to accept this as a cost of doing business, but for society-operated quality improvement programs and startups, these practices are extraordinarily burdensome and stifle innovation by creating barriers that only the largest 

entities can reasonably overcome. 

Solution: The ACC has been on the record requesting the reevaluation of the 

Health insurance Portability and Accountability Act (HIPAA) and its appropriateness in a 21st Century digital landscape. Technology has changed substantially 

since HIPAA was originally adopted in 1996. The ACC urges Congress to convene 

a hearing to reevaluate the role of HIPAA, including its successes and failures and 

whether all aspects of HIPAA remain appropriate given today’s technology. 

DELAY OF MEANINGFUL USE STAGE 3 IN ITS ENTIRETY

Issue: The Centers for Medicare and Medicaid Services (CMS) released a notice 

for proposed rulemaking on March 20, 2015 outlining the third and final stage of 

the Meaningful Use Program to be in place starting in 2018. The proposed changes 

increase thresholds for objectives and measures to an unattainable level in an aspirational attempt to achieve greater care quality through the use of health information technology. 

Example: The Health Information Exchange objective (#7) of the Stage 3 proposal 

requires program participants to provide or retrieve a summary of care record when 

their patient moves to or from their care, and calls for the participants to incorporate summaries of care from other providers into their EHR using the functions 

of certified EHR technology. This is required for a certain percent of transitions that 

is far too high given the existing problems outlined in previous examples of this letter and the lack of solutions currently in place. In full disclosure, other issues exist 

with this objective and the other seven objectives proposed. 

Solution: The College has provided comments to CMS on this proposal outlining 

our concern with the overreaching requirements. In light of these concerns, the College has called for a delay in the implementation of Meaningful Use Stage 3 in its 

entirety. Delaying only certain parts of Meaningful Use Stage 3 would cause further 

confusion around the program and lead the government to veer off the current 

course of reducing complexities of the program. Given the lack of participant data 

available from Meaningful Use Stage 2 coupled with the data exchange issues that 

already exist, it is not feasible to implement the increased demands of the program 

in 2018. Time is needed to reevaluate the issues participants are facing in Stage 

2 of the program and to develop and enact solutions. 

The ACC applauds you and your respective staff for taking the initiative to accomplish specific goals related to interoperability of EHRs and commends you for your 

collaborative approach. On behalf of the entire cardiovascular care team and the patients who we serve, the College appreciates the opportunity to provide input on 

these concepts and encourages you to address these very pertinent and closely conVerDate Nov 24 2008 16:06 Aug 09, 2017 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6621 S:\DOCS\95737.TXT CAROL
53 

nected issues. For additional information on the perspectives of the ACC, please contact Charles Cascio (ccascio@acc.org) and Lucas Sanders (lsanders@acc.org). 

Sincerely, 

KIM ALLAN WILLIAMS, SR., M.D., FACC, FAHA, FASNC, 

President. 

RESPONSE BY DAVID C. KENDRICK, M.D., MPH, TO QUESTIONS OF SENATOR ALEX- ANDER, SENATOR MURRAY, SENATOR ENZI, SENATOR CASEY, SENATOR BALDWIN, AND SENATOR CASSIDY

SENATOR ALEXANDER

Question 1. If you were Secretary of the Department of Health and Human Services and were faced with decisions about the Meaningful Use Stage 3 rule and the 

2015 Edition Certification rule, what would you do? 

Answer 1. I would pause the roll-out of the Meaningful Use Stage 3 program until 

the measures and expectations placed on providers can be synchronized and coordinated with MACRA, PQRS and other related programs which have the potential to 

create massive duplication of effort and confusion. By coordinated, I mean the following: 

1. The various programs (PQRS, MACRA, and MU) will all be unified from a timing, target, scope, content, and measurement perspective. To the extent that the 

programs are not fully integrated, at least all required measure and utilization reporting should be synchronized across the various Federal programs. 

2. CMS should continue to fund and maintain the creation of measures and the 

measure bundles that support consistent valid implementation of the measures 

through the Quality Data Model. This work is foundational to the assessment of 

value and assuring that the U.S. tax dollars are being spent wisely in healthcare. 

Without this, all previous investments in changing healthcare will be in jeopardy 

as we will have a system for which we cannot measure the impact, preventing 

iterations toward improvement. 

3. The Federal partners in healthcare delivery should be subject to the same requirements for reporting and interoperability as every other organization—a majority of the care funded by DoD, IHS, and VA is provided in the private sector and 

the private sector cannot deliver high value care and services without appropriate 

and timely access to accurate data about the patients they are treating. The Federal 

partners should participate in the Health Information Exchanges that are relevant 

to the care of their patients. The current approach to interoperability, through a federated connection, is not responsive enough to be relevant to clinical care. It can 

take several minutes to retrieve a single patient record, by which time the provider 

has usually moved on to the next patient. BY participating instead in the State and 

regional level HIE efforts, the Federal partners will be assured that their patients 

are getting the same benefits from interoperability as the other patients in the community, including fewer adverse drug events, reduced duplicate lab testing and imaging, and improved coordination of care. Surely the America’s active duty military, 

veterans, and tribal members deserve the same chance at receiving high quality 

care as any other American and active participation in local/regional Health Information Exchanges is an important step. 

4. An important concept in Stages 2 and 3 of meaningful use is the notion of the 

transition of care (ToC) from one setting (such as a hospital) to another (such as 

a long-term care facility). Unfortunately, CMS’ original approach to this measure, 

which required that a secure email be sent to the next provider in the transition 

was not successful and CMS has recast the requirement in the Amended Meaningful 

Use Stage 2 regulations that were released on 10/6/2015. The new requirement is 

much improved because it allows the sending/referring provider to send the patient 

records by other electronic means, such as to a Health Information Exchange. However, the burden of ensuring that the receiving provider actually looks at the data 

on the referred patient remains on the shoulders of the sending/referring provider, 

who is actually penalized in the measure if the receiving provider fails to check the 

patient record. This is not the way healthcare works. Once the sending/receiving 

provider has made the current records available to the receiving provider, his or her 

obligation has been met. It is the obligation of the receiving provider to check the 

records on the patient before making diagnostic and treatment decisions—not the 

referring provider. This may seem like a minor point but in reality this single suggested policy change could have the most impact of anything else that could be done 

to drive interoperability as well as improving healthcare. On the other hand, without it, the incentives for providers to demand the complete, interoperable medical 

54 

record on each patient they see will remain low. Please consider this alteration to 

the Transitions of Care policy in the amended MU2 and certainly in MU3. 

When a combined MU3/MACRA/PQRS strategy rolls out, ideally there will be a 

single program for providers to work with, one that is designed and tested with significant provider, patient and payer input and can align well with the current drive 

toward multi-payer value-based payment models such as the Comprehensive Primary Care initiative. 

However, I would push forward with the 2015 Edition Certification program, 

and especially the interoperability components and the new process of certifying 

that the EHR actually works in the field as it did when being certified ‘‘in the lab’’. 

We must get beyond the interoperability limitations and loopholes in the 2014 Certification program which are enabling EHR vendors and occasionally providers to 

skirt their interoperability responsibilities. Elements that should be emphasized in 

the 2016 Certification program and launched immediately include: 

1. Data interoperability will be sufficient to enable the owner of the EHR to elect 

to participate in HIE and configure their system to export data of their choosing 

structured and coded to current standards, based on an automated trigger of 

their choosing and deliver it securely to a location of their choosing. Appropriate 

triggers would include the referral of the patient to another provider, completion of 

an encounter note, sign off on a new lab or imaging test result, and other clinical 

events that should be communicated with other members of the patient’s care team. 

Appropriate locations for the exported data to go would include a health information 

exchange, secure email, public health program, or registry. 

2. Data export formats will include standard message types (HL–7 2.x) as well 

as document types (HL–7 3.0’s CCDA 2.x standard) and documents to support external evaluation of quality and value (QRDA1 files with complete coded data), etc. At 

a minimum, all file & message types required for MU, PQRS, MACRA, and any 

other mandated reporting programs should be able to be exported at no cost and 

delivered as above in 1. 

3. The interoperability described above should be rigorously tested and validated 

by the Certification Bodies both in the development lab at the EHR vendor (where 

they are tested today) AND in the field when the product is deployed in a provider 

practice or hospital (where it is not tested today, and most commonly fails to meet 

interoperability expectations). 

4. Vendors should be required to support credential exchange standards such as 

SAML and OAUTH which enable doctors’ and other providers’ workflow to move 

seamlessly among different vendor products in the course of treating each patient 

and conducting their other care-related work such as quality assessment and utilizing decision support. This is critical to enabling innovation to continue in the 

Health IT space, even though a few large vendors claim large swaths of the territory. 

SENATOR MURRAY

Question 1. You testified that you have personal experience working with providers in Oklahoma to make sure that they are able to exchange electronic health 

information. I regularly hear from providers about information blocking, but the Department of Health and Human Services reported to Congress in April that in many 

cases they have limited tools to find out when information blocking is occurring. 

Answer 1. Yes, that is correct—this is a very complex issue, and it takes expertise 

in the field of medical informatics, focused attention, and a desire to fix the problem, 

all of which are rarely available in busy medical practices. In addition, one must 

have access to the vendor product at the practice level to identify the issues. There 

are dozens of ways that an EHR vendor can (intentionally or unintentionally) prevent interoperability from occurring. Further, many practices I encounter are actually too afraid to report their vendor—fearing repercussions such as poor service, 

higher bills, or delayed responsiveness to critical issues. Any of these can put a 

practice or small hospital out of business and this fear is clearly limiting the filing 

of formal complaints. I listed six common ways data blocking can occur in my testimony, but there are many others. 

Since it is impossible to think of all the ways that data blocking can occur, effective surveillance and enforcement is required. Ideally, ONC should receive sufficient 

funding to provide visible and active enforcement of the requirements in the Certified Health IT program in order to protect the tax-payers’ investment in health 

IT. These funds should be used to make the existing ONC Certified Vendor Surveillance program more robust. The success that MyHealth has had in identifying and 

pursuing remediation with vendors whose products fall short of the required capabilities has been limited to only a few vendors and has required inside knowledge 

55 

of the workings of ONC and the Accredited Certifying Bodies as well as significant 

time focused on the tracking and reiteration of our complaints. Furthermore, the 

critical knowledge we gained about unlocking an EHR vendor system through the 

Surveillance program has not been publicly communicated—rather that burden has 

fallen to our small non-profit organization. While we are happy to help our peers 

and others seeking interoperability it would seem that ONC should be tasked with 

publicizing the results of Certified Vendor Surveillance activities just as they publish the list of certified products. 

The Accredited Certifying Bodies, the private organizations contracted by ONC to 

implement the Certification program, are also currently tasked with conducting the 

Surveillance program. Because these ACB’s are dependent on the vendors they certify for most of their revenues, there seems to be a potential conflict of interest created by the assignment of the ACB’s to also conduct the product Surveillance program. Whether driven by conflict or not, the current Surveillance activities seem 

much less substantial than they should be. The 2014 Surveillance report by the 

ACB’s (which has not been made publicly available as far as I can tell) was disappointingly thin on details and action, especially given the tenor and rate of complaints that we hear from providers regularly. 

Question 2. This committee has also heard testimony that, in order to use health 

IT, providers often have to sign contracts that include ‘‘gag clauses,’’ prohibiting 

them from disclosing technical problems or unfair pricing. Health IT is certified by 

the Federal Government because it stores and transmits information that is used 

to save lives—users should be able to safely report problems without facing any sort 

of repercussions. 

Answer 2. Agreed. These gag clauses are certainly a part of the problem. We recently surveyed our member organizations to gather the data on the costs they faced 

when connecting their EHR to MyHealth’s Health Information Exchange. The reports ranged from $0 to $40K + ongoing monthly fees. This was concerning, but 

even more concerning was the fact that most of the providers and other organizations we surveyed reported that they could not divulge the cost due to contract restrictions (gag clauses). 

Question 3. What tools and protections are needed to ensure that individuals can 

safely report on unfair market practices regarding the use of health IT, without fear 

of repercussions? 

Answer 3. Expanding and encouraging ONC’s certified technology Surveillance 

program (as described above) is very important. Publicly reporting significant findings of this surveillance program is also very important. Like any good enforcement 

program, whistle-blower protections should be put into place, and cases should be 

promptly and professionally handled. In our experience, even when a vendor is 

forced to correct a shortcoming in their technology, the remediation time window is 

so long (months to more than a year) that it adversely affects the practice and other 

stakeholders anyway, and no compensation is offered to the affected practices or entities while the remediation is being performed. In some cases, the practices have 

been forced to pay the additional ‘‘product’’ fees the vendor originally requested even 

though we know the vendor’s product has been found to be defective and the obligated fix is working its way through the system. 

A successful Surveillance program must have teeth—that is, ONC must have the 

power and a mechanism to withdraw certification if necessary. In theory, this is currently possible, but in reality this is rarely done because of concern for the impact 

of decertification on those providers that use the decertified products. This creates 

a ‘‘too big to fail’’ scenario with EHR vendors. These implications should be addressed clearly in the Certification program. There are several ways to address this: 

1. Require the decertified vendor to continue to provide services to the practices 

but discount their fees to offset the Medicare or Medicaid penalties the practice will 

incur by not meeting Meaningful Use. If the loss to the provider exceeds the feeds 

then actual financial compensation could occur. 

2. An insurance product could be required of Certified Vendors (or even made 

available to practices) that would enable the providers to change vendor products 

should the Certification of their existing systems be withdrawn or should the vendor 

go out of business. This could be a means of supporting the ‘‘lemon law’’ I proposed 

in my previous testimony. 

SENATOR ENZI

Question 1. What is the greatest barrier in obtaining access to data from the perspective of vendors? 

56 

Answer 1. I suppose that the EHR vendors would cite the complexity of the MU 

Certification process, the cost of connecting their products to HIE’s in various communities, and the highly variable levels of sophistication among the HIE vendors 

and HIE organizations. While I agree that these elements all play a factor, one simple fact makes me question the real significance of these issues. It has been known 

for a long time (decades in some cases) that many of the large EHR vendors aggregate data from their customers and resell de-identified data to researchers, pharma, 

and other organizations interested in big healthcare data. Most practices and hospitals sign agreements with these vendors that contain fine print that grants the 

EHR vendor the rights to that de-identified clinical data. Very few providers, in my 

experience, are aware of this practice. This common practice, which requires all of 

the same activities as interoperability, makes me skeptical about vendor complaints 

that interoperability is ‘‘too hard’’ or ‘‘too expensive’’. 

Question 2. Is this challenge technical in nature, rooted in custom-designed 

EHR’s? What, in your opinion, would be the simplest way to address this problem? 

Answer 1. There are two potential sources of data blocking: (1) Provider data 

blocking and (2) Vendor data blocking. 

Provider data blocking: As noted in my testimony, with the rise of value-based 

and risk-sharing payment models, provider opposition to interoperability seems to 

be melting away, because the incentives to have the complete medical record available wherever and whenever needed for care are now shared among the patient and 

all providers they choose to involve in their care. 

Vendor data blocking: Unfortunately, these incentive realignments do not seem to 

have affected Vendor data blocking. In our recent experience, the greatest barriers 

to broad interoperability are EHR vendor policies and business practices around 

interoperability, not technical challenges. While it is true that many of the largest 

EHR vendors are still running highly proprietary code written in the 1980s and 

1990s, and some are still using database products from the 1970s, the basic capabilities needed for appropriate levels of interoperability have existed for a long time and 

frankly work quite well if they are used. 

As described above, most vendors are quite capable of extracting clinical data, 

standardizing its structure and exchanging it with other organizations as evidenced 

by decades of resale of de-identified clinical data to third parties by many EHR vendors. Despite this extensive experience, EHR vendor capabilities for data exchange 

and quality of the exported data remains quite poor and non-compliant with the 

Certification Criteria. Thus, one can only conclude that the correct incentives are 

not in place to warrant these vendors to participate fully in interoperability. 

The simplest solution to this problem is iterative, not sweeping—this is, it builds 

on the work already begun rather than ripping and replacing with some other new, 

potentially more expensive approach. 

1. As recommended above, the 2015 EHR certification program should be allowed 

to proceed, because it contains a number of provisions that should increase the 

interoperability capabilities of the EHR vendors and improve the Surveillance program. 

2. The Certified EHR Surveillance program at ONC should be adequately funded, 

as noted above. In particular, vendors should be required to demonstrate that each 

install of their product is interoperable by making a connection to a standard test 

server operated by the Certification Program or perhaps a local health information 

exchange organization certified by ONC, and transmitting the required standard 

documents on a few dozen test patients. This level of testing would provide assurance to the practice or hospital and their patients that the EHR product has the 

capabilities and is properly configured for interoperability. This concept has been referred to previously as ‘‘field testing’’ for interoperability and would go a long ways 

toward assuring that the technical capabilities are not a limitation. 

3. Making the patient, rather than the practice or provider, the frame of reference 

for quality and value measurement: By emphasizing (and even requiring) the use 

of interoperable data on each patient in quality reporting and other value assessment, CMS and others can shift vendor and provider incentives away from data 

blocking toward improved health data interoperability. 

Making this change to focus measurement on the patient is also critical for the 

success of value-based payment models. New value-based payment models for 

healthcare are showing some promise that savings can actually be achieved while 

quality is maintained or improved. For example, CMMI’s Comprehensive Primary 

Care initiative has shown 7 percent and 5 percent cost savings over the last 2 years 

in Oklahoma. However, all value-based payment models depend completely on having the ability to measure Value accurately. 

57 

Unfortunately, those of us practicing medicine and working with clinical information daily have come to recognize a significant methodological flaw in CMS’s current 

approach to value assessment which calls the validity of most of today’s value assessment into question. Although an exhaustive discussion of this is not possible 

here (happy to provide more details if there is interest), the basic issue is that the 

current measurement approach uses the wrong frame of reference. Just as adopting 

the correct frame of reference is important to solving basic physics problems, so too 

is adopting the proper frame of reference critical to correctly measuring value in 

healthcare. Unfortunately, most current CMS projects adopt the doctor or the practice as the frame of reference for measurement, when in reality, the proper frame 

of reference is the patient. To choose any other frame of reference than the patient 

is to risk repeatedly counting the same (and especially the sickest) patients over and 

over as they see multiple doctors and hospitals. In addition, only by centering measurement on the patient can the impact of team-based care and effective care coordination be measured and reported accurately and without methodological issues. We 

have demonstrated this approach to measurement in Oklahoma as part of the successful Comprehensive Primary Care Initiative, and it makes a significant difference 

in the results. 

The achievement of these three items and especially item #3 will create a marketplace whose natural tendencies are toward, rather than away from, interoperability. 

Question 2. When you work with vendors, providers, and ONC to resolve issues, 

do you see there being a need for a more defined process to facilitate those interaction? 

Answer 2. The CEHRT Surveillance program was originally conceived to provide 

such a defined process but until the last year or so has not been an active program. 

ONC appears to be making strides in strengthening the Surveillance program but 

funding for the effort seems limited. As recommended above, a strong, transparent, 

and responsive Surveillance program with real ‘‘teeth’’ will go a long ways toward 

reducing EHR data blocking. We would be happy to contribute specific experiences 

and suggestions for improving and expanding the surveillance program. 

SENATOR CASEY

Question 1. In the absence of a straightforward method of patient matching like 

a national patient identifier, health IT uses complicated algorithms to match patient 

records from multiple locations and providers. Algorithms include data such as 

name, date of birth, address, and social security number. Pennsylvania has a significant Amish population and many Amish people don’t have Social Security numbers 

or phone numbers. Additionally, many older female patients share a Social Security 

number with their husbands and many are widows, making matching of their 

records challenging. As a result, hospitals like Geisinger in Danville, PA have had 

to develop unique and complicated ways of matching patients that are not always 

highly reliable. 

How does lack of reliable method of patient matching contribute to difficulties in 

sharing information? Are there additional sub-populations for which patient matching is especially difficult? What are the implications for care of the patient? What, 

in your view, is the best solution? 

Answer 1. Assuring accurate patient identity is critical to the health and wellbeing of the patients we serve. Unfortunately, the political will to implement a nationwide patient identifier has not existed since the passage of HIPAA authorized 

it. Nevertheless, there are many things that can be done to address this issue. In 

particular, electronic master patient indexes (eMPI’s) have become important tools 

for resolving identity at regional and State levels, and many HIE’s around the country have these tools and several offer them to local doctors, hospitals and other providers as a source of truth against which patient registrations can be searched. In 

addition, State and regional eMPI’s can provide active feedback to providers about 

patient identities that may have errors or need resolution. By correcting data at the 

source, the accuracy of patient identity throughout the entire healthcare system is 

improved. We have seen that this approach can be quite successful, with close to 

99 percent of all patient identities accurately matched between organizations without human intervention. The remaining patient identities must be matched to the 

correct patient with human intervention. In the case of a State or region, this is 

manageable. However, it is probably premature to attempt to construct a national 

eMPI because the trust does not yet exist at a national level, and further the number of manual interventions required would be in the millions, requiring significant 

staff. 

Our experience at MyHealth confirms the concerns outlined in the question about 

specific missing data (like social security numbers). In addition, we often see paVerDate Nov 24 2008 16:06 Aug 09, 2017 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6621 S:\DOCS\95737.TXT CAROL
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tients with rapidly changing addresses, phone numbers, and even last names. We 

carefully monitor the identity of twins, triplets, quadruplets, etc, because they often 

have very similar first names and identical last names, dates of birth, addresses and 

phone numbers. Having a single medical ID does not necessarily help with these 

kinds of issues. A single medical ID could be helpful—it is after all just one more 

data point on the patient. However, in our experience, even with a national identifier, all of the logic and capabilities of an eMPI will still be required to accurately 

maintain identity. 

For regions/States which have implemented eMPI’s, the challenge of maintaining 

accurate patient identity is greatly reduced. In order to optimize this approach, 

some regions have included State registration data such as that from State DMV’s 

or identity from credit agencies such as Equifax and others. 

This does leave the challenge of maintaining patient identity on a national level, 

but a strong regional/State-level eMPI infrastructure will enable the optimization 

and exchange of patient identity at a national level as well. By optimizing identity 

where patients receive most of their care (near their homes), the issue of national 

patient identity becomes much more manageable. As States and regions work with 

one another to exchange interoperable health data, they are addressing these issues 

of identity management as well, so this issue may already be on its way to solution. 

SENATOR BALDWIN

Question 1. In your testimonies, a number of you suggest that we need to increase 

transparency for all stakeholders to help address some of the problems we see with 

data blocking and to promote interoperability. 

How do we create this transparency; what needs to be measured and reported by 

providers and vendors for us to determine if data blocking is occurring or if progress 

is being made? 

Answer 1. Creating transparency is important. I would offer three ways of achieving transparency of the data blocking issue, and suggest that these approaches are 

also essential to curing the data blocking issue: 

1. Further emphasize (and fund) the ONC Certification Surveillance program with 

included language about transparency of findings and public communication of results. 

2. Establish a nationwide measure of interoperability. This metric is constructed 

using existing data sources and would be based on the premise that every patient 

deserves to have their complete, longitudinal medical record available wherever and 

whenever it is needed for decisions about their healthcare. This single metric can 

be applied to specific types of clinical encounters and events to track and monitor 

our progress as a nation toward interoperability. A few months of research would 

be required to rigorously validate the metric but it will provide enormous insight 

and motivation toward interoperability once available. We have prototyped such a 

measure and it seems quite feasible to roll out broadly within a year. 

3. Measure value at the correct frame of reference: the patient. As noted above, 

value-based payment models must be based on value assessments that take into account each patient’s entire experience of care, not just the pieces of experience that 

occur in each practice or with each individual doctor. If payment policy shifts to reward reporting metrics based on multi-sourced/complete data on each patient rather 

than just individual practice perspectives, sophisticated interoperability will spread 

quickly because it will have a clear business case for providers and vendors. 

SENATOR CASSIDY

Question 1. How do you define data blocking? 

Answer 1. I would define data blocking as any factor, whether intentional or unintentional that prevents a patient from having their complete, longitudinal medical 

record available wherever and whenever they or their healthcare team needs it for 

decisionmaking about their health. Admittedly this is an outcome-based definition 

of data blocking, but I find it helps avoid the loopholes and semantic issues that 

have thus far enabled vendors and others to thwart attempts at true healthcare 

data interoperability. Unintentional causes of data blocking should be identified and 

pursued for correction, which can be greatly facilitated by the creation of an Interoperability Metric as described above. Intentional causes of data blocking need to 

be identified (again, using an Interoperability Metric) and brought to light using 

smart policy (to align incentives away from data blocking, for example) and enforcement of regulations (such as the ONC Surveillance program). 

Question 2. In the context of certification, how do you penalize the vendor without 

penalizing the physician? 

59 

Answer 2. As described above in more detail, it makes sense that, because the 

EP or EH has purchased a product that has been ‘‘certified’’ by a government agency, it is not fair to penalize them for subsequent failures of that product, including 

the potential revocation of the product’s certification. The purchase and implementation of an EHR product is a massive, expensive and complex task for any healthcare 

organization, and is usually second only to (and often exceeds) the cost of their physical facilities. In today’s healthcare marketplace, the EHR is central to the success 

or failure of the organization. 

For these reasons, it seems logical that significant consumer protections and risk 

mitigation should exist for purchasers of these systems. Among these should be: 

1. Requirement that a vendor who loses their certification, even if only temporarily, must cover any MU penalty losses to their customers, first through discounts 

on licensing fees, and then through future service or actual monetary compensation. 

2. Establishment of insurance products to mitigate the extreme cost and market 

share loss experienced by practices and hospitals who must make an unexpected 

EHR vendor change. Practices or hospitals could then require that their vendor be 

‘‘bonded’’ against such an unexpected event, similar to the way risk is mitigated in 

the construction industry today. 

3. Make Vendor contracts, including as much as possible the Total Cost of Ownership, transparent, and encourage a competitive, consumer-driven marketplace which 

will ultimately be much more conducive for success as well as continued innovation. 

4. Be very careful not to ‘‘over design’’ the requirements of certified Health IT 

(and the required uses of that IT)—the requirements should be written to focus on 

the desired outcome rather than prescribing exactly how the outcome should be 

achieved. If we eliminate the potential for innovation then we have failed utterly 

in our efforts to improve health and reduce costs. 

Unfortunately, many EP’s and EH’s are being penalized now for not meeting MU 

requirements even though they invested in Certified health IT. Putting in place policies that ensure that health IT is an open marketplace with sufficient transparency 

to enable the consumers (in this case doctors and hospitals, but eventually patients 

as well) to drive the success or failure of the vendors will be the best and most permanent fix. 

Question 3. Should ‘‘gag clauses’’ in contracts be made illegal? 

Answer 3. Yes. I can’t think of a single way that these gag clauses improve patient care, reduce costs, or improve the practice of medicine. 

[Whereupon, at 11:50 a.m., the hearing was adjourned.] 

Æ