The Sequoia Project, serving as the TEFCA Recognized Coordinating Entity (RCE), is working through the terms and conditions of participation in the nationwide network of networks. In a March 4 public feedback session, the RCE sought response to draft rules of the road for participation of potential Qualified Health Information Networks (QHINs).
The Common Agreement will provide the governance necessary to scale a functioning system of connected HINs that will grow over time to meet the demands of individuals, clinicians, and payers. The Common Agreement will be a legal document that QHINs sign. Some provisions of the Common Agreement will flow down to other entities (including providers) via contracts.
The Common Agreement consists of three components, the Minimum Required Terms and Conditions (MRTCs), the Additional Required Terms and Conditions (ARTCs) and the Qualified Technical Framework (QTF). The March 4 public session walked potential QHIN participants through draft proposals for ARTCs, which mainly deal with how the RCE will handle situations if QHINs are not in compliance with its rules or have to deal with a security breach.
Steve Gravely, founder & CEO of the Gravely Group, who works with the RCE, explained that compliance with requirements for exchanging electronic health information is mandatory and non-compliance must result in corrective action or possible termination of participation. He added that since the RCE cannot impose monetary penalties, such as fines, the consequences for non-compliance relate to suspension or termination of participation in the network. “We would love to say it will never happen. It is not what the RCE wants, but we have to plan for possibility.”
Gravely explained that suspension by the RCE may be based on three situations:
• Failure to pay applicable fees: The type and amount of fees have not been determined yet, he said, but will be developed with input from the Common Agreement Work Group.
• Material breach of the Common Agreement by a QHIN that is not cured within 15 calendar days of being notified of the breach. (QHIN and RCE may mutually agree to a longer period.)
• Threat Condition: Substantial likelihood that acts or omissions by a QHIN or a QHIN’s Participants/Participant Members creates an immediate threat or will cause irreparable harm to the RCE, another QHIN or its Participants/Participant Members. (The RCE may suspend a Participant/Participant Member instead of the QHIN if the Threat Condition is limited to a Participant/Participant Member.)
Gravely added that a QHIN will be permitted to suspend exchange activities with another QHIN if it has “reasonable and legitimate” concerns related to the privacy and security of information exchanged with another QHIN. He noted the RCE must develop criteria to indicate what would be a “reasonable and legitimate” concern, based on facts, not conjecture or rumor.
One question the RCE work group will have to work through is whether a suspension should be made public. “The RCE is not trying to damage a QHIN’s business reputation. We need to be careful in terms of how we socialize that the RCE has had to suspend a QHIN.” On the other hand, people might suppose participants and other QHINs are entitled to know since they are relying on it. And publicizing the suspension could be a disincentive to falling out of compliance.
Gravely was asked what would happen to contractual arrangements if QHINs are acquired or merge. “That is an important topic for the work group to talk about,” he responded. “We need to think about who is eligible to be a QHIN, and if there is a U.S.- based requirement or not,” he said. “I don’t have an opinion, but there could be a scenario in which a QHIN is acquired by someone ineligible. That would be a material breach and they would have to stop being a QHIN. We are starting to see consolidation in the HIE space, and I think that consolidation is going to accelerate. It is something we are going to have to wrestle with.”
The work group will also have to give thought to what happens to participants if a QHIN voluntarily chooses to terminate its participation. “We need to give a lot of thought about what happens if a QHIN decides to terminate. We do not want to leave customers high and dry.”
Here are some next steps in the TEFCA process:
• Public stakeholder feedback session regarding draft ARTCs and the Governance of Exchange Activities on 3/16;
• Public stakeholder feedback session: QHIN Technical Framework (QTF) Draft 2 – 3/18;
• Common Agreement Work Group meetings from April through July. The RCE is gearing up for applications for this work group;
• Public stakeholder feedback session: Revised ARTCs during June and July;
• Continued stakeholder engagement (targeted stakeholder calls, monthly public calls)
• Common Agreement Draft 1 (MRTCs and ARTCs in single document) and QTF Draft 2 published for public comment later this year.
