Your Money and Your Medical Privacy Gone

Both your money and your medical privacy are going to be gone unless a single sentence law is enacted. No less a source than the Congressional Budget Office (page 16 and 17) is saying that the recent Health Information Technology parts of the American Recovery and Reinvestment Act of 2009 will drive the taxpayer into a $17 billion ditch even after 10 years. That’s right, the taxpayer will be paying $30 billion to LOSE $17 billion after 10 years with no break-even point even mentioned. Remember that national ‘investment’ in Health Information Technology is going to catapult us into Health care nirvana in which your data and privacy are secure and the health care system in the United States hums along like a well oiled Internet resulting with all of these great cost reductions and efficiencies? All we really have to do is just spend money on the problem and it will be solved. We need to ‘incentivize adoption’ of health care technology and all will be well. The law as written will achieve anything but that. A single sentence could change that.

The premise is that someone offering you $30 million dollars to play in the NBA like Michael Jordan will actually make you play like Michael Jordan. A small problem is that you have never played like Michael Jordan before. The nirvana of lower cost and more accurate delivery of health care with privacy and security assurances is something that Health Information Technology in the private sector has, with a few important exceptions, never delivered before. Furthermore, in the United States and with the law as written it never will.

The reason is that any hard choices other than to spend taxpayer money in enormous quantities are avoided in the law. They are left as an after thought for Washington bureaucrats. Therefore, the usual failed dynamics of health care information technology are going to come into play only this time on a grander scale. Furthermore, any attempts to create a true market by leveling the playing field between the public and proprietary Health IT vendors was either totally watered-down or eliminated altogether. I am sure that the proprietary health IT lobbyists were working over time on that one. Worse, the law as written will sell medicine, its practitioners and patients into a perpetual type of serfdom to Health IT corporations which will become far too powerful for their our our own good. It will work like this: after purchasing a proprietary Electronic Medical Record System using federal money, a practitioner will be nearly always beholden to that vendor and cannot go to anyone else by contract for service or upgrades. And there will be upgrades. Forced upgrades. Expensive forced upgrades.

The important exceptions are: The Veterans Affairs VistA software system which is in the public domain, successfully deployed in the private sector and is a remarkable example of a government success. Naturally the government has tried to kill it numerous times. Other Free/Open Source Software Electronic Medical Records that have achieved notable success like Webreach and ClearHealth. The recent ARRA of 2009 as written tips the playing field against FOSS software through hostile certification processes and marketing noise drowning out real solutions.

A often repeated definition of insanity is attempting to solve a problem with the same thinking that caused the current problem. There is currently very little different thinking in the ARRA of 2009 regarding Health IT. There have been many failed Health IT initiatives over the years: CHIN’s, RHIO’s, and more. Missing from the law is a ban on federal funding for the purpose of purchasing proprietary Electronic Medical Record software. Our leaders at most levels hide behind the ‘controversy’ of proprietary versus Free/Open Source licensed Electronic Medical Records when proprietary Electronic Medical Record systems have inherently failed to solve the problems of health IT in this country. This is despite bending over backwards for decades in order to make proprietary EMR business models work while it still only works for some proprietary EMR vendors. Proprietary EMR software for the public and leadership is still after all these years the obstruction to cost-effective, privacy-safeguarding, computerization of medicine.

The problem comes down to the nation and its leaders, including many prominent health IT leaders who should know better but, lacking in knowledge or courage, try to make EMR’s something they are not. They are a public good like a lighthouse but they keep trying to make it into a private good like furniture or cars. They keep attempting to ram a proprietary software square peg into a round hole over and over again. This time they appear to be using a truly stupendous amount of money to ram that square peg into that round hole with the same predictable results. Only this time your money and your privacy are at risk as never before.

‘We are the federal government and we are here to help.’ The governments own Congressional Budget Office states that this program will have a massive deficit over 10 years. It will return a giant negative to the taxpayers that funded it. It will remove the public’s medical data privacy. I will state this again. It will remove the public’s medical data privacy. The assurances of privacy for medical data in the law are very weak, of the ‘trust us’ or ‘trust our beauracracy’ variety while allowing proprietary EMR software to remain a completely unknown and un-knowable black box. The saying ‘trust, but verify’ applies, only the public’s right to verify what it has purchased is not safeguarded in any way in the law.

All parties except proprietary Electronic Medical Record vendors are being asked to make huge sacrifices: health care organizations, practitioners and patients in terms of time, treasure and privacy. Proprietary Electronic Medical Record vendors are being handed guaranteed taxpayer money and cartel or eventually monopoly status with little or no sacrifice on their part. Essentially selling our nations health IT infrastructure into perpetual servitude with the taxpayers own money. One sided? You and I were not present when the negotiations where going on, the proprietary EMR vendors lobbyists where undoubtedly present.

It need not be this way. A single sentence law enacted by Congress could change this picture overnight. That sentence is: ‘All Electronic Medical Record software purchased with federal funds must be licensed under the Affero General Public License version 3.’ Such a sentence would change the picture dramatically for the better. Current vendors would not go out of business, they could license their proprietary offerings as AGPL to receive federal funds. It would remove incentives by proprietary vendors to put up tollbooths and black boxes. It would safeguard the public privacy and security by allowing any 3rd party to audit software. All of these guarantees are currently missing from the law. If federal funding only for AGPL licensing is not added to the law quickly, that is not all that will be missing: a huge chunk of taxpayer money and any hope of medical record privacy. Contact your representative and ask for a law that states: ‘All Electronic Medical Record software purchased with federal funds must be licensed under the Affero General Public License version 3.’

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