Antitrust Law Daily Wrap Up, ANTITRUST NEWS: FTC staff promotes competition in health IT interoperability, (Apr 8, 2015)

By Bryant Storm, J.D.

Recommendations on promoting competition and consumer data privacy in health information technology (HIT) were made by FTC staff in response to the Office of the National Coordinator for Health Information Technology (ONC) Shared Nationwide Interoperability Roadmap. The FTC staff comments encourage the ONC to consider the relationship between the benefits of interoperability and the economic interests of health care providers.

Roadmap. According to the FTC staff, the ONC roadmap sets out the agency’s “vision for a future health IT ecosystem where electronic health information can be freely exchanged between the different health IT systems employed by consumers, health care providers, and public health practitioners.” Additionally, the roadmap provides three critical pathways of: (1) requiring standards; (2) motivating the use of those standards through appropriate incentives; and (3) creating a trusted environment for the collecting, sharing and using of electronic health information. The roadmap plans to achieve industry adoption of an interoperable ecosystem within 10 years. When the proposed plan was made available at the beginning of 2015, the ONC issued a call for public comments on its draft roadmap.

Competition points. In its comments, the FTC staff asked the ONC to consider three competition points: (1) the creation of a supportive business environment that encourages interoperability; (2) shared governance mechanisms; and (3) the advancement of technical standards. The comments urged the ONC to understand that the widespread adoption of interoperability in the HIT marketplace depended on the promotion of competition and innovation. In terms of competition, the FTC asked the ONC to consider that some providers may be resistant to interoperability because it would enable individuals and caregivers to more easily change providers, thereby eliminating the competitive advantage that some providers hold. Additionally, the FTC suggested that some HIT vendors were likely to favor the status quo where the switching of products and services entails prohibitive costs.

Governance and standards. Although the FTC staff acknowledged that actual evidence of such behavior in the ONC roadmap context has not been identified, the staff offered examples of some of the pitfalls associated with the sort of collective standard setting and certification proposed by the ONC. For example, standard setting can result in situations where competitors will refuse to certify a competitor’s product as compliant, refuse standards that would include new or innovative products, or improperly fail to reveal patent rights relevant to technology that will be potentially included in the standard. Regarding other anticompetitive aspects of standardization, the FTC staff warned that standards may: “(1) limit competition between technologies; (2) facilitate customer lock-in; (3) reduce competition between standards; and (4) impact the methods of selecting standards.”

News: Antitrust Privacy FederalTradeCommissionNews