Is NwHIN going from “Free” to “For Fee”?
Notable news late last week included ONC Coordinator Dr. Fazad Mostashari publishing a blog post stating that ONC has decided NOT to pursue promulgating regulations to govern the NwHIN. The decision was made in part after his Officeconsidered comments to the RFI it released in the early summer seeking public input on a potential regulatory approach for the NwHIN and its participants, including the possibility of requiring accreditation and certification to validate organizations seeking to participate in the NwHIN. Mostashari explains in his post that many RFI responders expressed concern that issuing new regulations to set governance standards for the NwHIN could actually slow the development of trusted exchange. In light of this, Mostashari indicates that his Office has decided to allow the HIE and HIT markets to continue evolving organically, at least for now.
The NwHIN website currently posts a list of 27 organizations that are already approved NwHIN Participants. Other organizations seeking to become a NwHIN Participant have to “on board” to the Exchange by following the (painfully detailed) process on the NwHIN website, which you can review here.
But buyer beware...
While current NwHIN Participants may have “on boarded” and be using the NwHIN for free, it looks like subscription and/or use fees for the NwHIN are coming soon …..
On August 20th, the HealtheWay Exchange Transition Update was published, which summarizes some of the “transitions” to expect with regard to the NwHIN. To start, it’s helpful to know that HealtheWay is the nonprofit organization now chartered to support the NwHIN Exchange. The entity’s Articles of Amendment and Restatement of the Articles of Incorporation were recently filed in the Commonwealth of Virginia and made effective July 30, 2012. Bylaws for HealtheWay are posted there as well. The Update notes a list of changes to how the NwHIN will be operating, including:
- Currently, NwHIN Exchange is an ONC initiative, but as of October 2012 it will transition to the public-private initiative called the eHealth Exchange;
- Currently, NwHIN operations are supported and funded by ONC, but going forward, operations will be supported and funded by HealtheWay;
- Currently, all services are provided to NwHIN Participants for free, but very soon Participants are going to be asked to pay for the NwHIN’s services being supported through HealtheWay.
It is probably not a huge surprise that, going forward, Participants will be charged fees to connect through the NwHIN Exchange because “free” is not a viable model for financial sustainability. However, it will be interesting to see how organizations respond and whether paying fees to utilize the NwHIN was something that such organizations, and States for that matter, have factored in to their HIE models.
In light of all this, it is important for organizations, providers and even State governments looking to join the NwHIN to have a solid understanding of how the DURSA works, especially with regard to how “material terms” can be changed (i.e., like imposing new fees), and how a Participant can terminate its participation with the NwHIN if it cannot meet (or does not agree with) a material change.
If NwHIN Participants are going to be charged fees to use the NwHIN Exchange, then organizations should be considering this as part of their evaluation of whether the NwHIN Exchange is the best solution to meet its organization’s primary needs. Organizations will also want to evaluate whether the NwHIN delivers sufficient value in exchange for the fee that they will be charging (an amount which we don’t yet know). In addition, the integration and on-boarding process is extremely time-consuming and resource intensive, and so organizations will not necessarily want to “go through” this process with two different HIE vendor solutions. Finally, for those that were expecting to connect to the NwHIN for “free”, they should update their plan (and budgets) to reflect the transition of the NwHIN Exchange to a “for fee” model.
To review the provisions of the DURSA that pertain to “changes” to material terms, click “Continue Reading”.
EXTRACTED DURSA PROVISIONS CONCERNING CHANGES TO PARTICIPATION, AND TERMINATION OF PARTICIPATION BY PARTICIPANT:
Definition/Change Process for Operating Policies and Procedures
“Operating Policies and Procedures” shall mean the policies and procedures adopted by the Coordinating Committee that describe (i) management, operation and maintenance of the Performance and Service Specifications; (ii) qualifications, requirements and activities of Participants when Transacting Message Content with other Participants; and (iii) support of the Participants who wish to Transact Message Content with other Participants. The Operating Policies and Procedures are attached hereto as Attachment 3, as amended from time to time in accordance with Section 11.03.
11. Operating Policies and Procedures.
11.03. Operating Policies and Procedures Change Process.
a. Participant Comment Period. Prior to approving any new, amended, repealed or replaced Operating Policies and Procedures, the Coordinating Committee shall solicit and consider comments from the Participants on the new, amended, repealed or replaced Operating Policies and Procedures.
b. Objection Period. Following the Coordinating Committee’s approval of the new, amended, repealed or replaced Operating Policies and Procedures, the Participants shall be given thirty (30) calendar days to review the approved Operating Policies and Procedures and register an objection if the Participant believes that the new, amended, repealed or replaced Operating Policies and Procedures will have a significant adverse operational or financial impact on the Participant. Such objection shall be submitted to the Coordinating Committee and contain a summary of the Participant’s reasons for the objections.
c. Approval of Changes to the Operating Policies and Procedures.
1. Less Than One-Third of Participants Object. If the Coordinating Committee receives objections from less than one-third of the Participants during the thirty (30) calendar day objection period, the new, amended, repealed or replaced Operating Policies and Procedures shall go into effect as approved by the Coordinating Committee and on the date identified by the Coordinating Committee, unless the Coordinating Committee withdraws the new, amended, repealed or replaced Operating Policies and Procedures prior to such date. Consistent with Section 11.03(d), the effective date identified by the Coordinating Committee may not be any earlier than the end of the thirty (30) day calendar objection period.
2. More Than One-Third of Participants Object. If the Coordinating Committee receives objections from one-third or more of the Participants during such thirty (30) calendar day period, the Coordinating Committee shall review the new, amended, repealed or replaced Operating Policies and Procedures in light of the objections and make a determination as to how to modify the new, amended, repealed or replaced Operating Policies and Procedures, if at all. Once the Coordinating Committee finalizes its determination, it shall communicate this determination to the Participants and seek their approval. At least two-thirds of the Non-Governmental Participants and at least two-thirds of the Governmental Participants must approve the new, amended, repealed or replaced Operating Policies and Procedures for them to become effective.
19.02. Suspension or Termination by Participant.
a. A Participant may voluntarily suspend its own right to Transact Message Content for a valid purpose, as determined by the Coordinating Committee, by informing the Coordinating Committee and other Participants of its voluntary suspension in accordance with the Operating Policies and Procedures. Once a Participant has properly informed the Coordinating Committee and other Participants of its voluntary suspension, neither the Participant, nor its Participant Users, shall Transact Message Content until the voluntary suspension has ended and the Participant has informed the Coordinating
Committee and other Participants that the suspension has ended in accordance with the Operating Policies and Procedures. During the period of the voluntary suspension, the Participant’s inability to Transact Message Content and comply with those terms this Agreement that require Transaction of Message Content shall not be deemed a breach of this Agreement. Any voluntary suspension shall be for no longer than ten (10) consecutive calendar days or for more than forty (40) calendar days during any twelve (12) month period, unless a longer period is agreed to by the Coordinating Committee.
b. A Participant may terminate its own right to Transact Message Content by terminating this Agreement, with or without cause, by giving the Coordinating Committee at least five (5) business days prior written Notice. Once proper Notice is given, the Coordinating Committee shall be empowered to revoke the Participant’s Digital Credentials as of the date of termination specified in the Notice. Once the Coordinating Committee revokes the Participant’s Digital Credentials, the Coordinating Committee shall provide Notice of such revocation to the remaining Participants.
d. Implementation. The Coordinating Committee shall provide Notice of new, amended, repealed or replaced Operating Policies and Procedures at least thirty (30) calendar days prior to the effective date of such new, amended, repealed or replaced Operating Policies and Procedures. This thirty (30) calendar day period may run concurrently with the thirty (30) calendar day objection period. Within fifteen (15) calendar days of receiving Notice of the new, amended, repealed or replaced Operating Policies and Procedures, a Participant may request that the Coordinating Committee delay implementation of such the new, amended, repealed or replaced Operating Policies and Procedures based on good cause. The Coordinating Committee shall respond to a request to delay implementation within seven (7) calendar days of receiving the request.
