Legislation Introduced in Senate to Address Gag Orders in EHR Contracts

I have posted a number of previous blog notes about the so-called gag clauses that are commonly inserted into hospital EHR contracts. They tend to classify all of the EHR software as proprietary, thus placing any public discussion of the product out-of-bounds (see, for example: Gag Clauses in EHR Contracts Documented; Concerns Raised about Patient Safety; Parallels between Volkswagen and EHR Vendors Regarding "Proprietary" Software; Recall of the United HealthCare Picis PulseCheck Emergency Department Software; Sutter Health System EHR Crash Reported by Nursing Union). Such an embargo restricts the reporting of software errors and poses a threat to patient safety. We are now seeing the possibility of legislative corrective action of such contracts by the U.S. Senate. A bi­par­tis­an pair of sen­at­ors has in­tro­duced le­gis­la­tion aimed at im­prov­ing elec­tron­ic health re­cords’ trans­par­ency and ac­count­ab­il­ity (see: SENATORS AIM TO REVAMP FEDERAL RULES FOR ELECTRONIC MEDICAL CHARTS). Below is an excerpt from the article with some more details:

As Sen. Shel­don White­house re­calls, he heard Sen. Bill Cas­sidy ask­ing tough ques­tions on gag or­ders bar­ring doc­tors and hos­pit­als from dis­cuss­ing spe­cif­ic glitches in their pur­chased sys­tems....[T]he two [senators]...teamed up and in­tro­duced the Trust IT Act of 2015...recently. The meas­ure would es­tab­lish a health IT rat­ing sys­tem that lets con­sumers com­pare dif­fer­ent products; ban health IT vendors from hav­ing nondis­clos­ure clauses in con­tracts; re­quire products meet­ing cer­tain se­cur­ity and in­ter­op­er­ab­il­ity re­quire­ments for cer­ti­fic­a­tion; and more. The bill comes at a time when the HELP Com­mit­tee has made im­prov­ing health in­form­a­tion tech­no­logy a pri­or­ity, and as Obama­care aims to bol­ster the ex­change of health in­form­a­tion through elec­tron­ic health re­cords. Also, the le­gis­la­tion’s in­tro­duc­tion came on the same af­ter­noon that the Health and Hu­man Ser­vices De­part­ment re­leased two fi­nal rules aimed at in­creas­ing in­ter­op­er­ab­il­ity and im­prov­ing pa­tient out­comes....The le­gis­la­tion would [require[ health vendors to at­test that they don’t par­ti­cip­ate in cer­tain in­form­a­tion-block­ing tac­tics and al­low­ing the HHS in­spect­or gen­er­al to in­vest­ig­ate such al­leg­a­tions and as­sess pen­al­ties for those en­ga­ging in such prac­tices. An­oth­er key com­pon­ent of the bill is let­ting health care pro­viders com­pare products based on se­cur­ity, us­ab­il­ity, and in­ter­op­er­ab­il­ity. It would es­tab­lish a health IT rat­ing sys­tem that would be avail­able on­line at the Of­fice of the Na­tion­al Co­ordin­at­or for Health In­form­a­tion Tech­no­logy web­site.

In general, this proposed legislation to counter EHR vendor information blocking seems to be a step in the right direction. I have always been surprised that the legal staffs of some of the most prestigious hospitals in the country would tolerate contracts containing such broad "gag" clauses. This is no empty threat on the part of the EHR vendors. I have blogged about the so-called  "Epic police" that enforce information blocking, not only among their own hospitals clients but also among people who view the product at healthcare IT conferences (see: Parallels between Volkswagen and EHR Vendors Regarding "Proprietary" Software).

My experience with hospital attorneys is that they would spend hours pouring over contracts and minutiae. How could they then tolerate such gag clauses and then be forced to look to the federal government for relief. My only explanation for this lapse is that such clauses seem to have been standard operating procedure among EHR vendors so they may have been accepted without a whimper. At the very least and failing rescue by the Senate, the news spotlight now seems to be shining brightly on EHR contracts as well as the lack of interoperability of these systems.