The last word Congress is final hurdle in removing EHR ‘gag clauses’

Congress will likely move to forbid non-disclosure clauses, also known as “gag clauses,” in electronic health record (EHR) contracts with healthcare providers, but final action won’t occur until 2016 when the House and Senate come together to align their different, more far-ranging proposals on EHRs, Washington insiders tell Medical Economics.

The issue of non-disclosure clauses, which forbid providers from talking about software glitches such as treatment alerts not displaying correctly or other issues related to patient safety, first surfaced in a 2011 Institute of Medicine (IOM) report.

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It came to the fore again this spring during consideration of the 21st Century Cures Act in the House of Representatives under the broader heading of information blocking. The American Medical Association stated its support for a ban on non-disclosure clauses in a letter to the House Committee on Energy and Commerce in May.

In early October, Senators Bill Cassidy (R-LA) and Sheldon Whitehouse (D-RI) introduced the Transparent Ratings on Usability and Security to Transform Information Technology (TRUST IT) Act of 2015, which also calls for a ban on gag clauses.

The 21st Century Cures Act passed the House in July and awaits Senate action. If the Senate passes a different EHR bill, the two must then go to a House-Senate conference committee where differences will be hammered out. Or the House could opt to pass the Senate bill.

While lauding provisions of the Cassidy-Whitehouse Senate bill, Leslie Krigstein, vice president of congressional affairs with the College of Healthcare Information Management Executives (CHIME), thinks the measure could eventually be linked with one that Senator Lamar Alexander (R-TN), chairman of the Senate Health, Education Labor & Pensions Committee, has been pushing under the broad umbrella of healthcare innovation.

Next: Taking a very measured approach to gag clauses

“Between now and the [presidential] election, I see an innovation package moving through the Senate,” Krigstein says. The Cassidy-Whitehouse proposal, which demonstrates there is bipartisan support for banning gag clauses, likely will get folded into that measure and then the House and Senate must determine how to come together on one bill.

EHR vendors are taking a very measured approach to the topic of gag clauses. For example, representatives of Cerner said they are reviewing the Whitehouse/Cassidy proposal and will provide Congress with feedback.

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Irv Lichtenwald, MBA, chief executive officer of California-based Medsphere Systems Corp., which offers EHR systems based on open source, rather than proprietary software, has been vocal in his criticism of gag clauses. “The sad thing is that Congress has to even consider doing something about it,” says Lichtenwald. Providers should simply refuse to sign contracts with such clauses, he argues.

The Office of the National Coordinator for Health Information Technology (ONC) said in an April 2015 report to Congress that it does not have the power to outlaw gag clauses but pointed to the potential harm they, and other forms of information blocking by vendors can cause in terms of patient care, referring back to the IOM report.

“ONC cannot take direct action against providers who block information, and current conditions of participation in federal health care programs do not specifically prohibit information blocking,” ONC said in its “Report on Health Information Blocking.”

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So the ball is very clearly in Congress’ court. The only question seems to be when it will pick it up and run with it.

John N. Frank has more than 39 years of experience as a professional journalist, including coverage of the complex and changing world of healthcare. He is a contributing author to Medical Economics.