Health records giant Epic cracks down on startup for unauthorized sharing of patient data
The eponymous sign outside Epic headquarters in Verona, Wisconsin.
Source: Yiem via Wikipedia CC
Epic Systems, the largest provider of software for managing medical records, says a venture-backed startup called Particle Health is using patient data in unauthorized and unethical ways that have nothing to do with treatment.
Epic told customers in a notice on Thursday that it cut off its connection to Particle, hindering the company’s ability to tap a system with more than 300 million patient records. Particle is one of several companies that acts as a sort of middleman between Epic and the organizations — typically hospitals and clinics — that need the data.
Patient data is inherently sensitive and valuable, and it’s protected by the Health Insurance Portability and Accountability Act, or HIPAA, a federal law that requires a patient’s consent or knowledge for third-party access. One way Epic’s electronic health records (EHR) are accessed is through an interoperability network called Carequality, which facilitates the exchange of more than 400,000 documents a month, according to its website. Particle is a member of the Carequality network.
To join the network, organizations are vetted and have to agree to abide by clear “Permitted Purposes” for the exchange of patient data. Epic responds to requests for data that fall under the “Treatment” permitted purpose, which means the recipient is providing care to the person whose records they are requesting.
Epic said in its notice on Thursday that it filed a formal dispute with Carequality on March 21, over concerns that Particle and its participant organizations “might be inaccurately representing the purpose associated with their record retrievals.” The company suspended its connection with Particle that day.
“This poses potential security and privacy risks, including the potential for HIPAA Privacy Rule violations,” Epic said in the notice, which was obtained by CNBC.
In a blog post late Friday, Carequality said it takes disputes “very seriously and is committed to maintaining the integrity of the dispute resolution process as well as trusted exchange within the framework.” The organization said it can’t comment about the existence of any disputes or member activities.
Representatives from Epic and Particle didn’t respond to requests for comment. However, Particle published a blog post Friday evening and said it began “addressing this issue immediately” after Epic “stopped responding to data requests from a subset of customers” on March 21. Particle said in the post that a big challenge in such matters is that there is “no standard reference to assess the definition of Treatment.”
“These definitions have become more difficult to delineate as care becomes more complicated with providers, payers, and payviders all merging in various large healthcare conglomerates,” Particle wrote.
Epic, a 45-year-old privately held company based in Wisconsin, is the largest EHR vendor by hospital market share in the U.S., with 36% of the market, according to a May report from KLAS Research. Oracle is second at 25%, following the software company’s $28 billion purchase of Cerner in 2022.
As of July 2022, Particle had raised a total of $39.3 million from investors including Menlo Ventures, Story Ventures and Pruven Capital, according to a release. The New York-based startup said at the time that its technology “uniquely combines data from 270 million plus patients’ medical records by aggregating and unifying healthcare records from thousands of sources.”
Epic said Particle introduced thousands of new participant connections to Carequality in October, and asserted that they fell under the treatment use case. In the following months, all of Particle’s participant organizations claimed a permitted purpose of treatment for their requests, Epic said.
‘Non-treatment use case’
However, Epic began to notice some red flags. The company said it observed anomalies in the patient record exchange patterns, like requests for large numbers of records within a certain geographical region. Additionally, Epic said that the companies connected to Particle weren’t sending new data back from patients, which “suggests a non-treatment use case.”
Epic and its Care Everywhere Governing Council, consisting of 15 industry representatives, evaluated Particle’s new participant connections and determined that organizations like Integritort, MDPortals and Reveleer, which acquired MDPortals last year, “likely didn’t conform to a Treatment Permitted Purpose,” the notice said.
Epic said it learned that another Carequality member was planning to file a dispute, alleging that Integritort was using the patient data to try and identify potential class action lawsuit participants. On March 28, Epic said it discovered that a participant called Novellia claimed it was requesting records under treatment, despite publicly advertising its product as a “personal health tool.”
Integritort, Reveleer and Novellia didn’t respond to requests for comment.
Epic said it filed a formal dispute with Carequality at the Governing Council’s recommendation. On April 4, Epic asked Particle to provide additional information to illustrate how its participants qualify for the treatment use case, according to the notice.
Michael Marchant, director of interoperability and innovation at University of California Davis Health, serves as the chair of Epic’s Governing Council. He said it’s hard to know exactly why Particle might have provided these organizations with records, or whether it intentionally engaged in wrongdoing. But, he said, companies have to act responsibly even if pressured to deliver financial results.
“If they were selling to things that they knew were not treatment-related organizations in an effort to match VC funding or profit margins or revenue targets or what have you, then that would be really bad,” Marchant told CNBC in an interview.
In a statement on LinkedIn Wednesday, Particle founder Troy Bannister said Epic acted unilaterally, and that Particle has not seen “rationale, justification or official claims” surrounding these issues.
Bannister wrote that, to the company’s knowledge, “all of the affected partners directly support treatment.” He said these organizations pull data for care providers and share data back with the Carequality network.
“While we continue maintaining our connection with Carequality, the ability for one implementor to decide, without evidence or even so much as a warning, to disconnect providers at massive scale, jeopardizes clinical operations for hundreds of thousands of patients as well as the trust that is so critical to a trust-based exchange,” Bannister wrote.
Bannister didn’t address Epic’s April 4 request for additional information.
The formal dispute process is still ongoing. Marchant, who also serves as the co-chair of an advisory council at Carequality, said it’s the first time in the network’s history that a complaint has gotten this far.
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Boaz Weinstein, founder and chief investment officer of Saba Capital Management, during the Bloomberg Invest event in New York, US, on Wednesday, June 7, 2023.
Jeenah Moon | Bloomberg | Getty Images
Boaz Weinstein, the hedge fund investor on the winning side of JPMorgan Chase’s $6.2 billion, “London Whale” trading loss in 2011, is now taking on index fund giant BlackRock.
On Friday, Weinstein‘s Saba Capital detailed in a presentation seen by CNBC its plans to push for change at 10 closed-end BlackRock funds that trade at a significant discount to the value of their underlying assets compared to their peers. Saba says the underperformance is a direct result of BlackRock’s management.
The hedge fund wants board control at three BlackRock funds and a minority slate at seven others. It also seeks to oust BlackRock as the manager of six of those ten funds.
“In the last three years, nine of the ten funds that we’re even talking about have lost money for investors,” Weinstein said on CNBC’s “Squawk Box” earlier this week.
At the heart of Saba’s “Hey BlackRock” campaign is an argument around governance. Saba says in its presentation that BlackRock runs those closed-end funds the “exact opposite” way it expects companies to run themselves.
BlackRock “is talking out of both sides of its mouth” by doing this, Saba says. That’s cost retail investors $1.4 billion in discounts, by Saba’s math, on top of the management fees it charges.
BlackRock, Saba says in the deck, “considers itself a leader in governance, but is crushing shareholder rights.” At certain BlackRock funds, for example, if an investor doesn’t submit their vote in a shareholder meeting, their shares will automatically go to support BlackRock. Saba is suing to change that.
A BlackRock spokesperson called that assertion “very misleading” and said those funds “simply require that most shareholders vote affirmatively in favor.”
The index fund manager’s rebuttal, “Defend Your Fund,” describes Saba as an activist hedge fund seeking to “enrich itself.”
The problem and the solution
Closed-end funds have a finite number of shares. Investors who want to sell their positions have to find an interested buyer, which means they may not be able to sell at a price that reflects the value of a fund’s holdings.
In open-ended funds, by contrast, an investor can redeem its shares with the manager in exchange for cash. That’s how many index funds are structured, like those that track the S&P 500.
Saba says it has a solution. BlackRock should buy back shares from investors at the price they’re worth, not where they currently trade.
“Investors who want to come out come out, and those who want to stay will stay for a hundred years, if they want,” Weinstein told CNBC earlier this week.
Weinstein, who founded Saba in 2009, made a fortune two years later, when he noticed that a relatively obscure credit derivatives index was behaving abnormally. Saba began buying up the underlying derivatives that, unbeknownst to him, were being sold by JPMorgan’s Bruno Iksil. For a time, Saba took tremendous losses on the position, until Iksil’s bet turned sour on him, costing JPMorgan billions and netting Saba huge profits.
Saba said in its investor deck that the changes at BlackRock could take the form of a tender offer or a restructuring. The presentation noted that BlackRock previously cast its shares in support of a tender at another closed-end fund where an activist was pushing for similar change.
At the worst-performing funds relative to their peer group, Saba is seeking shareholder approval to fire the manager. In total, BlackRock wants new management at six funds, including the BlackRock California Municipal Income Trust (BFZ), the BlackRock Innovation and Growth Term Trust (BIGZ) and the BlackRock Health Sciences Term Trust (BMEZ).
“BlackRock is failing as a manager by delivering subpar performance compared to relevant benchmarks and worst-in-class corporate governance,” the deck says.
If Saba were to win shareholder approval to fire BlackRock as manager at the six funds, the newly constituted boards would then run a review process over at least six months. Saba says that in addition to offering liquidity to investors, its board nominees would push for reduced fees and for other unspecified governance fixes.
A BlackRock spokesperson told CNBC that the firm has historically taken steps to improve returns at closed-end funds when necessary.
“BlackRock’s closed-end funds welcome constructive engagement with thoughtful shareholders who act in good faith with the shared goal of enhancing long-term value for all,” the spokesperson said.
Weinstein said Saba has run similar campaigns at roughly 60 closed-end funds in the past decade but has only taken over a fund’s management twice. The hedge fund sued BlackRock last year to remove that so-called “vote-stripping provision” at certain funds and filed another lawsuit earlier this year.
BlackRock has pitched shareholders via mailings and advertisements. “Your dependable, income-paying investment,” BlackRock has told investors, is under threat from Saba.
Saba plans to host a webinar for shareholders on Monday but says BlackRock has refused to provide the shareholder list for several of the funds. The BlackRock spokesperson said that it has “always acted in accordance with all applicable laws” when providing shareholder information, and that it “never blocked Saba’s access to shareholders.”
“What we want is for shareholders, which we are the largest of but not in any way the majority, to make that $1.4 billion, which can be done at the press of a button,” Weinstein told CNBC earlier this week.
WATCH: CNBC’s full interview with Saba Capital’s Boaz Weinstein
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