Some say a former hospital CEO's allegation of anticompetitive activity by Partners HealthCare and its electronic health-record vendor points to the broader problem of barriers to EHR interoperability.
In a recent blog post, former Beth Israel Deaconess Medical Center CEO Paul Levy accused electronic health-record vendor Epic Systems Corp. and Partners HealthCare of working together to block competition.
Levy alleged that Partners and Epic tell Partners-affiliated but otherwise independent medical groups that they must install the Epic EHR to achieve interoperability.
Partners tells the practices that if they don't install Epic's EHR, they won't be able to participate in Partners' favorable insurance contracting rates.
That kind of arrangement keeps Partners' network strong and repels Epic's competitors, Levy alleges.
“This may not be your usual type of antitrust activity, but it is antitrust activity nonetheless. And you can bet it is happening in other states as well,” Levy wrote.
Levy is calling on the Massachusetts attorney general to investigate the matter.
A spokesman for Epic, the industry's largest software supplier, was unable to provide comment by deadline. Partners and the Massachusetts attorney general's office declined to comment.
Barak Richman, a law professor at Duke University, said it's possible there could be an antitrust violation in this case. But he said there has to be an understanding of the technology and market dynamics involved.
Richman also said the situation points toward a larger quandary when it comes to EHRs: Why hasn't interoperability among EHRs been easier to achieve?
“We don't have adequate competition, we have significant market concentration, and we just don't seem to be getting the value you'd expect given 2015 technology,” Richman said of EHRs, noting that a lack of interoperability can hurt competition. “It's a real puzzle and it deserves a lot of attention. By no means is it certain that we're in this situation because of nefarious or illegal conduct, but that certainly could be an explanation.”
Todd Cozzens, a partner at private-equity venture-capital firm Sequoia Capital, also decried the lack of interoperability among EHRs, saying that it's at the heart of the situation Levy describes.
“We wouldn't have this problem if our focus from HHS, from the (Office of the National Coordinator for Health Information Technology), from the provider community, was on making sure we had interoperability like other industries have,” Cozzens said. “If we had interoperability and focused on that, then the free market would decide which were the best electronic medical records.”
Cozzens said he can understand why Partners and other big health systems would want a single EHR system.
“Their only choice is to try to impose one standard that is interoperable, and it's unfortunate they have to do that, and the free market isn't working to its maximum efficiency,” Cozzens said. “It's happening all over, and it's unfortunate because in many cases we're putting in the hands of users, systems that aren't ideal in terms of their interoperability.”
But Howard Landa, vice chair of the Association of Medical Directors of Information Systems, said he's never heard of a situation like the one Levy describes in his blog. He said the interoperability between different EHR systems allows “you to share a reasonable amount of information.” Landa said Epic, in particular, makes an effort to facilitate sharing of information. Landa is also chief medical information officer at Alameda County Medical Center in Oakland, Calif., and formerly worked at Hawaii Permanente Medical Group and used Epic's EHR system there.
“It just doesn't seem consistent with Epic's business model,” Landa said of the situation Levy describes.
If the situation is as Levy describes, Matthew Cantor, a partner at Constantine Cannon, said it could be considered anticompetitive. Antitrust laws prohibit those with market power from forcing consumers to purchase one product or service in order to get the monopoly product or service they really want, which in this case would be certain reimbursement rates, Cantor said.
“If what Partners and Epic are doing would force independent physician practices to use the Epic platform, not because that platform is a better quality or is priced in some advantageous way to the physician, but because it's their only economically rational option, that could constitute a tying arrangement,” Cantor said.
In an interview with Modern Healthcare, Levy said his criticism doesn't stem from his past competition with Partners. He also acknowledged that Athenahealth, a competitor of Epic's that is working with Beth Israel Deaconess, pays him for occasional blog posts to Athenahealth's Health Leadership Forum. But Levy said he was writing about problems with Epic well before he ever submitted a blog post to Athenahealth.
“For quite some time, Epic has made it difficult for its system to be interoperable with other systems,” Levy said. “So in that regard, it makes them an ideal partner with a health system that wants to do the same, that wants to make it difficult for patients to switch to other providers … there's kind of a symbiosis between a dominant health system like Partners and an EHR system like Epic's in that they both have an interest in making it difficult for patient information to be transferred from one system to another.”
Epic, along with a number of other EHR vendors, recently dropped fees it had previously charged customers for interoperability with other systems. The vendors made the changes after HHS' Office of the National Coordinator for Health IT criticized providers and health IT vendors for business practices that made the transfer of EHRs difficult, known as “data blocking.”
The Massachusetts attorney general's office already has an eye on Partners, which had operating revenue of $10.9 billion in 2014, according to the Modern Healthcare financial database.
Attorney General Maura Healey wrote a letter to Partners' CEO earlier this year urging it to halt its plans to acquire a physician group, saying it could lead to price increases. That letter followed a ruling by a state court judge rejecting an agreement that would have allowed Partners to acquire several hospitals in exchange for agreeing not to raise prices beyond the rate of inflation through 2020.
