The Federal Trade Commission is calling attention to antitrust hazards on HHS' road map to improving the electronic exchange of healthcare information.
In comments posted to its website Wednesday, the FTC largely praised the 10-year road map for interoperability issued in January by HHS' Office of the National Coordinator for Health Information Technology. But it also described areas the ONC might want to take a closer look at before moving forward.
The FTC said the plan for a common, coordinated governance process that includes competitors has the potential to foster innovation and competition—but it also could “unduly distort competition.”
“In prior study, enforcement and advocacy, the FTC has observed that, when market forces are replaced by coordinated action between market participants, competition may be suppressed,” according to the FTC's comments. “In extreme cases, this coordination may be used by market participants to exclude new products or competitors.”
The ONC also recognizes that concern, as well, saying in the road map that it would encourage stakeholders to make collective decisions in a way that does not limit competition, according to the FTC comments.
The FTC also praised the ONC's plan to publish a common set of standards to be used by technology directors and to help coordinated governance efforts. Such standards are likely to foster competition in many circumstances, the commission said.
But the FTC also cautioned that unintended consequences may arise from those standards.
“Once a standard is adopted and implemented by industry, switching to alternative platforms can be difficult,” the FTC said. “In addition, when standards are collaboratively set by private parties, market-based competition between technologies vying for adoption is replaced by the collective action of market participants themselves.”
That, in turn, can lead companies to use the standard-setting process to lock out new products or competitors, according to the FTC.
The FTC notes that the road map already acknowledges that concern, too, with its pledge that the annual list of best available standards will be updated in a way that facilitates competition between standards for selection and promotes the entry of innovative standards.
But the FTC goes on to say that the ONC might want to further consider that standardization could limit competition between technologies, lock in customers, reduce competition between standards and affect the method of selecting standards.
The federal government, the FTC said, should take advantage of its capacity as a major payer for healthcare services to promote competition between health IT vendors by making interoperable technology more desirable for providers.
That would build off a suggestion already in the road map that healthcare payers overcome the IT market's resistance to interoperability by shifting from fee-for-service payments to value-based models in which providers rely on interoperable health IT to achieve quality and efficiency goals.
Dr. Joseph Smith, chief medical officer and chief science officer for San Diego-based health IT research group West Health, called the FTC's overall comments “thoughtful” and “well-considered.”
“I think they're trying to provide a balanced view of the notion that you need a conducive business environment along with standardization,” Smith said. “I think they've championed market forces to get this done and they're just advocating for assurance that you don't stifle completion in the process.”
Deborah Gersh, co-chair of the healthcare practice group at Ropes & Gray in Chicago, also said the FTC has a valid point in saying, “Hey, we have to be careful because improvements happen through competition.”
Smith added, however, that he might disagree with the FTC's concerns about encouraging resistant providers and developers to adopt interoperability. Many providers are already clamoring for interoperability and are not resistant to the idea. He also said the FTC might have focused too much attention in its comments on how standardization might inhibit competition without spending enough time talking about how standardization can also spur competition.
The commission's comments included a two-paragraph section about consumer protection considerations that commended the ONC for highlighting privacy and security in the road map. That FTC reiterated the importance of such protections and said its “staff looks forward to working with ONC as it continues to develop these and other protections for the privacy and security of consumer data, both in and out of traditional healthcare settings.”
Gersh said the commission seemed hesitant to delve too deeply into the issue, giving a nod to the fact that interoperability requires certain data protections without addressing with much detail what can be an emotional topic for consumers.
“We'd all like to be there,” Gersh said of interoperability, “but there are some impediments and things we need to deal with along the way.”