The Federal Trade Commission’s (“FTC”) Office of Policy Planning, Bureau of Competition, Bureau of Consumer Protection, and Bureau of Economics recently submitted comments on the Office of the National Coordinator for Health Information Technology (ONC’s) draft Shared Nationwide Interoperability Roadmap (“Roadmap”). As discussed in previous posts, this Roadmap sets forth a ten year plan to develop and implement a nationwide interoperable health information infrastructure. The FTC’s comments focus on (1) creation of a supportive business and regulatory environment that encourages interoperability; (2) shared governance mechanisms; and (3) the advancement of technical standards.

  • Supportive Business Environment: FTC staff encouraged “the federal government, in its capacity as a market participant (i.e., a major payer), to make an effort to align economic incentives to create greater provider demand for interoperable health IT, thereby incentivizing health IT vendors to compete on the basis of interoperability.”
  •  Shared Governance of Policy and Standards that Enable Interoperability: In discussing shared governance mechanisms in the Roadmap, the FTC raised a concern that “when market forces are replaced by coordinated action between market participants, competition may be suppressed.” The FTC provided examples of anticompetitive conduct by health industry members involved in collective standard setting from its own advocacy and enforcement actions in this area for ONC to consider “as it implements a framework for shared governance.”
  •  Core Technical Standards and Functions: Finally, the FTC encouraged ONC to evaluate how its advised core technical standards could impact competition by (1) limiting competition between technologies; (2) facilitating lock-in of certain technologies; (3) reducing competition between standards; and (4) affecting the method for selecting standards.