Epic wins court case

With help from Sarah Owermohle (@owermohle) and Mohana Ravindranath (@ravindranize)

Editor’s Note: This edition of Morning eHealth is published Mondays, Wednesdays and Fridays at 10 a.m. POLITICO Pro eHealth subscribers hold exclusive early access to the newsletter each morning at 6 a.m. Learn more about POLITICO Pro’s comprehensive policy intelligence coverage, policy tools and services at politicopro.com.

Quick Fix

— Epic wins court case: Epic wins a disability case, and attracts criticism from patient advocates on its recent effort to delay HHS interoperability rules.

— Facebook attempts to get ahead of misinformation: The social media giant is trying to clamp down on bad information about the coronavirus epidemic.

— Hahn on data: New FDA commissioner Stephen Hahn is talking a lot about data.

And more. But first, the jump.

eHealth tweet of the day: Caitlin Sanford @CaitlinFSanford “Medical discrimination based on psych, gender, race, etc is v real & v dangerous.

HCPs who want unlimited access to patient’s med info (esp EHR) need to recognize how patients’ right to privacy & control over disclosure (esp w/r/t psych/SUD Dx) is essential to their safety”

MONDAY — Hope everyone had a nice weekend — didn’t eat more than too much at your Super Bowl parties — and is ready for another newsy week. Any tips? Share at [email protected]. Discuss developments socially at @arthurallen202, @dariustahir, @ravindranize, @POLITICOPro and @Morning_eHealth.

Driving the Day

EPIC WINS DISABILITY SUIT — A federal judge granted Epic’s motion to dismiss a disability case brought by the National Federation of the Blind Friday.

The case, as we’ve previously covered, hinged on the Federation’s argument that the design of Epic’s software made it unusable or barely usable by blind users, thereby effectively locking them out of employment in the health care industry.

The Federation noted during the course of the case that one individual — Manuel Morse, a dispatcher for Brigham and Women’s Hospital in Boston — was a strong employee while the hospital’s EHR was configured in accordance with speech-to-text standards, but found the system difficult to navigate after it was upgraded. An Epic executive stated that upgrading the systems to the Federation’s specifications would’ve taken “thousands of person-hours”; the Federation had said it hoped success in the case would motivate other EHR firms to put in their own compliance work.

— And more hits at Epic: Epic’s attempts to delay HHS’ interoperability rules over privacy concerns have riled patient advocates who say the campaign is self-serving. But others agree with CEO Judy Faulkner’s central argument about privacy, even if they don’t agree with the way she made it.

“I do not see anything in the current proposal that protects patients from unscrupulous third parties who simply sell patient data,” Larry Ozeran, president at Clinical Informatics, told Morning eHealth. “I don’t think that Judy is out of line in sending the letter, but I do think the timing is a little late in the process. Earlier might have been less counterproductive and more effective.”

FACEBOOK ATTEMPTS TO GET AHEAD OF CORONAVIRUS MISINFO — Facebook fact-checkers are reviewing coronavirus-related posts to flag false claims and conspiracy theories in partnership with public health groups. It’s also sharing anonymized location and population density data with researchers to forecast the spread of coronavirus, the company noted in a blog post last week.

HAHN ON DATA — The new FDA commissioner is mindful of the challenges of data — even as the agency is approving treatments on more limited sets of information, while also keeping the agency’s “gold standard” reputation, he told your correspondent’s colleagues Sarahs Overmohle and Karlin-Smith.

Managing data and keeping up with technology has been top of mind for Hahn and FDA leadership generally. In Hahn’s introductory email to staff, he wrote, “I strongly believe that we need to do everything we can to attain more and better data for the work we’re doing, to be more proactive in gathering data, and to be more creative and thorough in our analysis of it.”

It’s in line with his deputy, Amy Abernethy, who has been overseeing the agency’s tech transformation prior to Hahn’s arrival.

WHEN ARTIFICIAL INTELLIGENCE OVERBOOKS — Who’s responsible when artificial intelligence embedded in EHRs discriminates against certain patients? There’s no clear answer, Sara Murray, Bob Wachter and Russell Cucina write in a Health Affairs blog in which they describe an Epic system predicting which patients won’t show up for appointments. That technology lets clinics schedule an additional patient in the same slot as someone who’s not expected to show up.

There’s plenty of potential for discrimination, they write. The predictive model incorporated patients’ personal characteristics including ethnicity, religion and body mass index, which, if used to double-book slots, could divert time and attention “from individuals who are already marginalized.” Some patients can’t make it to appointments because they can’t leave work or find child care; others have mobility or transportation challenges. “[A] patient with obesity who struggles with mobility may make it to their appointment only to find it overbooked, and their clinician thus overworked and distracted,” they write.

And since clinic personnel aren’t shown how the algorithm makes decisions, they may not realize that they’re double-booking a patient just because they’re obese, for instance. The authors call on vendors to hire more ethicists and take on more responsibility to prevent this kind of bias, especially since health systems may not understand how the algorithms work.

COMMENT SEASON — AHIP, the big insurers’ trade group, outlined its concerns about the Trump administration’s proposed price and cost transparency rules to require insurance plans and hospitals to disclose their negotiated rates — an effort to make it easier for consumers to compare prices.

The group warns the government that the rules exceed its statutory authority — perhaps a prelude to a lawsuit. Mandatory disclosure would “undermine competitive negotiations” and raise prices, AHIP argues in comments on a draft proposal.

AHIP also raises privacy concerns with the rules, arguing that they will empower app developers at the expense of consumer privacy. The rule requires the information to be disclosed in machine-readable format, which would allow information to flow to entities not bound by HIPAA.

STUDY CORNER — The advent of consumer health devices are democratizing health screening — whether or not a screening is indicated, note researchers in the Journal of General Internal Medicine.

As we’ve noted in previous coverage of the Apple Watch, many cardiologists are worried that such screening for atrial fibrillation will turn up not-very-meaningful cases of the condition, resulting in overtreatment.

The authors nod to that concern, writing that after alerts of a possible condition, “it is unlikely [device] manufacturers will bear any of the cost of the [resulting] testing” even if the alert is a false positive.

The health care system, they also observe, may be further fragmented by the advent of devices: They cite the Apple Heart Study, in which a large percentage of users who received alerts of potential atrial fibrillation didn’t reach out to the health care system. That means doctors may be in the dark about potential health problems. On the other hand, they also warn about a “potential tsunami of data” if the results of alerts are communicated to the doctor.

While maturing technology may solve some of these problems, the researchers conclude that: “Rather than allow [these consumer health devices] to enter the marketplace organically with the potential for unintended negative consequences, it is critical that clinical, research, and industry communities proactively collaborate and establish best practices for their use.”

What We're Reading

How chain pharmacies — armed in part with a blizzard of alerts — are endangering patient safety, warns The New York Times.

A scientist got a brain implant to ameliorate his alcoholism, reports OneZero.

A CNBC article on startups screening blood for cancer.

A new effort to rank academic journals for research transparency, reports Times Higher Education.