The U.S. Federal Trade Commission (FTC) recently opened an antitrust investigation into Epic Systems. Jody Godoy reported for Reuters that the FTC has sent investigative demands to others in the health technology industry seeking information about how Epic grants or withholds data access
“Texas Attorney General Ken Paxton sued Epic in December, accusing the company of shutting out would-be rivals by holding data hostage,” Godoy wrote. “The company keeps healthcare systems from using competitors through restrictions and fees, the state alleges.”
Godoy reported that Epic has denied the claims, stating its products are interoperable with external systems and that healthcare provider customers, not Epic, control access to patient records
Mel Soliz, a partner at Coppersmith Brockelman, shared her perspective with Healthcare Innovation
Do you have an idea of why this is happening now, or what prompted this investigation?
I cannot speak to what specifically prompted this investigation, but I can say generally that I don’t think there is one triggering event. Rather, this looks more like the culmination of years of concerns about market concentration and expansion, data access, and the increasingly important role electronic health record (EHR) platforms play in determining which technologies can compete in healthcare. From an antitrust perspective, that naturally raises the question whether control over the core technology platform used by healthcare providers is being used to improperly impede or disadvantage competition in adjacent markets. Whether that is actually occurring is what the pending investigations and other state-based litigation will have to determine.
How do data-sharing requirements and interoperability rules intersect with the FTC’s antitrust concerns?
These are separate bodies of law that are enforced under different legal authorities, but they can address the same underlying conduct from different perspectives. The federal Information Blocking Rule (IBR), for example, is concerned with whether certain actors, such as certified EHR vendors, engage in practices that they know or should know are likely to interfere with the access, exchange, or use of electronic health information, unless the practice is required by law or qualifies for a regulatory exception. Antitrust law, by contrast, may ask whether a company with market power is engaging in exclusionary or anticompetitive conduct that harms competition. Where the two intersect is when restrictions on access to, use of, or exchange of electronic health information also disadvantages competitors. IBR specifically recognizes this, with the Office of the National Coordinator for Health Information Technology (ONC) noting that discriminatory fees, licensing terms, contractual restrictions, or other practices directed at competitors may raise information blocking concerns, while potentially raising separate antitrust concerns as well.
So, you can see how the same underlying conduct could potentially be examined through both legal perspectives. It will also be important to watch whether factual findings and legal developments in the different regulatory proceedings and pending litigation begin to inform one another, even though the legal standards remain distinct
What could this investigation mean for EHR vendors and health tech companies?
I think this investigation is a very real shot across the bow. The federal government has made clear that it intends to take barriers to interoperability seriously and to address them through multiple legal and regulatory authorities, whether that is information blocking enforcement by OIG and ONC, provider disincentives administered through HHS and CMS, or competition enforcement by the FTC and DOJ. And importantly, this is not just about patient access to their own records. It is also about the business-to-business relationships that enable competition and technical innovation in healthcare. The ability of one technology company to access and exchange data with another can determine whether competing and complementary technologies can effectively operate in the market. I think vendors should take this seriously. Vendors should be working with knowledgeable legal counsel in this space to understand whether their interoperability practices could raise concerns under either information blocking or competition laws. They should also be closely assessing their conduct in the healthcare markets in which they operate, including the terms, pricing, technical means, and restrictions they place on interoperability and third-party access to their services.
What potential implications could this have for providers?
Healthcare providers should be paying close attention to these regulatory investigations and the interoperability litigation. Providers are heavily dependent on their EHR vendors not only to maintain clinical information, but also to enable that information to flow to other technologies and services they choose to use. So, practices that make it more difficult or costly for competing technologies to interoperate with an EHR can affect providers’ ability to choose the solutions that best meet their clinical and operational needs. Thus, the outcome of these investigations and litigation could have significant implications for provider choice, competition among health technology companies, and the terms on which providers can access and use their own data ecosystem.
