Vendor Gag Clauses Can Hinder Interoperability
By Christine Kern, contributing writer
A recently-released study finds proprietary clauses inhibit criticism and transparency.
A Politico investigation discovered most major EHR companies include gag clauses forbidding providers from revealing EHR-related problems and hazards to patient safety in their taxpayer-subsidized contracts with hospitals and health systems. The report found 10 of the 11 contracts Politico obtained from hospitals using six of the top EHR vendors — Epic, Cerner, Siemens (now owned by Cerner), Allscripts, eClinicalWorks, and Meditech — blocked providers from revealing such information to the public.
The Health, Education, Labor and Pensions (HELP) Committee plans to examine the issue, said an aide to HELP Chairman Lamar Alexander (R-TN). ONC officials say they oppose such clauses but lack the power to police them, according to Politico.
The vendors argue the gag clauses aim only to protect intellectual property, but critics believe they are inappropriate in the context of healthcare because they suppress the disclosure of faults and problems that impact patient health and safety.
This is the first time such clauses have been studied categorically, though they were first brought to light when a 2011 Institute of Medicine report warned such clauses “limit transparency, which significantly contributes to the gaps in knowledge of health IT–related patient safety risks.”
“The insiders tell me it’s the confidentiality and intellectual property clauses [that] are the biggest barriers to reporting adverse events,” Politico quotes David Classen, CMIO of Pascal Metrics and co-author the 2011 IOM report as saying.
Vendors argue that the gag clauses are rarely invoked. Jinesh Gandhi, VP of business development at eClinicalWorks, told iHealthbeat it allows its customers to post screenshots on YouTube, and customers frequently participate in substantial discussions about its software on the company’s customer forum. Gandhi also reinforced the confidential information language in its contract is designed to protect the company’s proprietary information.
Meanwhile, Eric Helsher, VP for client success at Epic, told iHealthbeat, “With permission, we very frequently allow folks to share information around the software.” And Leigh Burchell, VP of government affairs at Allscripts, explained the company would be concerned about the publication of “design information or proprietary information where competitors would be able to exploit,” but generally allows academic research that evaluates Allscripts’ software.
This is not the first time that vendors have been targeted for creating roadblocks to interoperability and improvements in healthcare. Health IT Outcomes reported last February that EHR vendors have been accused of taking patient data hostage and demanding high fees to release it, typically claiming technical problems limit the interoperability of their products.