Texas is dropping a part of its lawsuit against Epic Systems, specifically the claims about how the company's software handles parental access to a child's electronic health records.
In December, Texas Attorney General Ken Paxton filed a lawsuit against Epic alleging the health tech company monopolizes the electronic health record market and cements its dominance in the market through an "anticompetitive playbook."
The lawsuit, filed in Tarrant County District Court, also accused the company of engaging in deceptive practices that restrict parental access to their minor children’s medical records. On Tuesday, the Texas AG's office filed a notice of partial nonsuit indicating it was dropping the deceptive practices claims against Epic.
The notice of partial nonsuit states that the decision was made "in light of Epic’s recent changes to its software."
In previous statements, an Epic spokesperson said the company "does not determine parental access to children’s medical records."
"Decisions about parental access to children’s medical records are made by doctors and health systems, not by Epic," the spokesperson said.
The state is still moving forward with its antitrust claims under the Texas Free Enterprise and Antitrust Act. The Texas Attorney General's office alleges Epic "uses a wide range of exclusionary tactics to prevent potential competition from its partners, customers and even its own employees." According to the suit, these anticompetitive practices harm Texas hospitals and Texas patients by raising costs and blocking innovative technologies.
In the lawsuit, Paxton alleged that Epic "exploits its control" over patient medical records to automatically hide children’s medication lists, treatment notes and provider messages from parents when their child reaches 12 years old. Texas alleged that Epic’s default proxy-access configurations impede parents’ ability to see their children’s health information.
"These deceptive practices undermine the fundamental right of parents to direct their children’s healthcare" and violate Texas law, which grants parents complete and unrestricted access to their children’s medical records, the attorney general's office said in the lawsuit.
In a statement issued in December, Paxton referred to Epic as a "woke corporation" and stated that Epic's default proxy-access configurations "undermine the sacred rights of parents to protect and oversee their kids’ medical well-being."
In a statement provided to Fierce Healthcare on Wednesday, an Epic spokesperson said the Texas lawsuit includes "significant inaccuracies, including claims about MyChart's customer proxy settings."
"The state filed a voluntary dismissal of those claims on Tuesday. Ken Paxton's office requested that we change our customers' system settings. We said no because those decisions should be made by doctors and health systems and not by Epic. The lawsuit followed. The State should dismiss the remaining claims," the Epic spokesperson said.
In a Jan. 20 filing in Tarrant County District Court, the electronic health record giant said it makes "highly configurable software so that its customers, healthcare organizations across all fifty states, can determine what workflows and functionalities are needed to achieve their own compliance obligations—including with respect to parental access rights to medical records."
"What might be compliant in Texas might not be compliant in another state and vice versa, and those laws may change from time to time, as the law just did roughly four months ago in Texas. Configurability helps customers bridge that gap," the company wrote in its filing.
Epic said it would not "unilaterally go into each of its customers’ systems to change their individualized settings."
Epic also argued, in its court filing, that the state failed to produce facts or legitimate legal bases to support
any of its claims. "When Epic asked the State to identify any Epic customers it claimed were not in compliance with the new law, the State did not identify a single Epic customer. What appears to be going on here is that the State has decided to target Epic over a politicized issue regarding proxy access that Epic does not belong in the middle of. The State confirms as much in its press release, calling Epic a 'woke corporation[]' that supposedly 'undermine[s]' parents’ rights," Epic wrote in its answer to the lawsuit.
In its Answer and Affirmative Defenses, Epic also said the state's antitrust claims against it are pretextual and baseless. Epic denied Paxton's allegations of anticompetitive behavior, citing a lack evidence and factual flaws in the lawsuit.
The case will carry into a changing political landscape in Texas. Paxton, who launched the lawsuit, is leaving the Texas attorney general's office after more than a decade, after his unsuccessful bid for the U.S. Senate. Democrat Nathan Johnson defeated Republican Mayes Middleton in the Nov. 3 midterm election, becoming the first Democrat elected Texas attorney general since 1994.
The leadership change could bring a shift in the office's litigation priorities. Paxton's tenure was marked by high-profile legal battles over social and cultural issues, including transgender healthcare and parental rights.
Last year, the Texas Office of the Attorney General secured a settlement with Austin Diagnostic Clinic that required full restoration of parental proxy access for children aged 12 to 17. Paxton has also issued civil investigative demands to other EHR software providers over parental access to minor children's medical records.
The case will also have a new judge. Democrat Katherine Kim defeated Republican incumbent H. Dustin "Dusty" Fillmore III in the race for Tarrant County's 236th Judicial District Court.