In the last few days the announcement of a proposed NJ state law has made the Internet rounds.

“· On or after January 1, 2011, no person or entity is permitted to sell, offer for sale, give, furnish, or otherwise distribute to any person or entity in this State a health information technology product that has not been certified by CCHIT. A person or entity that violates this provision is liable to a civil penalty of not less than $1,000 for the first violation, not less than $2,500 for the second violation, and $5,000 for the third and each subsequent violation, to be collected pursuant to the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.).

· The bill defines “health information technology product” to mean a system, program, application, or other product that is based upon technology which is used to electronically collect, store, retrieve, and transfer clinical, administrative, and financial health information.”

Based on this definition any electronic transmission of health data must be done through a CCHIT-accredited system. It certainly does not exclude tethered or untethered PHRs. Since CCHIT has not even started looking into the certification of PHRs in general it is highly doubtful it would be able to succeed in their accreditation by 2011. And so, will every NJ user of HealthVault, Google Health or Dossia incur a $5,000 fine? Interesting question.

Of course the bigger issue is the play by a NJ state assemblyman who is trying to create a state monopoly for CCHIT, an organization that has a very serious image problem (see my previous post).

We should always consider the law of unintended consequences and this rather scary effort in a single state has the great advantage of helping us consider what would happen, if indeed CCHIT became the monopolistic entity it is trying so hard to be.

The proposed law, Assembly #3934 of the 213th Legislature, is sponsored by Assemblyman Herb Conaway, Jr. Dr. Conaway, a practicing physician who has been very active as a state politician, sponsoring multiple HIT-related legislation. He:

  • is chair of his state assembly  Health and Senior Services Committee.
  • testified in the US Congress, on behalf of the National Conference of State Legislatures (NCSL), where he served that year as chair of the Standing Committee on Health.
  • is also a member of the National Governors Association’s State Alliance for e-Health.

In short Dr. Conaway is, at a state level, a real powerhouse! And since medicine is licensed, in the US, at a state level, any new law about EHR introduced in a single state, can easily be replicated in other states, creating the de-facto monopoly that CCHIT is trying to achieve via multiple directions.

Now let’s go back to the thorniest issue about CCHIT. To this day Mark Leavitt, Chair of CCHIT refuses to address quietly and with civility the hard question about the deep connection between the non-profit organization he runs and HIMSS, the vendor-sponsored professional organization where he was CMO before chairing CCHIT. To repeat what has been said many times, including by David Kibbe MD,

“One has to question whether or not a vendor-founded, -funded and -driven organization should have the exclusive right to determine what software will be bought by federal taxpayer dollars,”… “It’s important that the people who determine how this money is spent are disinterested and unbiased . . . Even the appearance of a conflict of interest could poison the whole process.

I am not the only one with these concerns. Many other health care and health IT professionals have raised legitimate questions about CCHIT and its practices, its relationship with HIMSS, and yet to date these have not been resolved. A response that attacks me personally and labels me a liar is far from adequate, and so the questions will remain.

The stakes are too high to simply look the other way.

So, let’s look into appearances only. Dr. Conaway has

During the 2008 NJ/DE HIMSS Chapter meeting Dr. Conaway said:

Building a national health care network after states have built their own may not be the best solution. What surprises me is that in some states such as Iowa, they are able to exchange data amongst health care providers. There are lots of opinions as to why they are able to exchange data. I think it will be up the states to test policies and build the best solutions that can reach across state lines.

These are all plain facts. You can make up your own mind about the motivations for introducing the new proposed state law.

For me, any state or federal legislation that will try to limit innovation by forcing an artificial monopoly is antipatriotic. The President is calling upon all of us to do our part to help healthcare reform. Dr. Conaway is doing his part to block innovation and to retain the status-quo.

Update: Mark Leavitt, Chair, CCHIT, sent the following answer to an AMIA listserv, in response to questions regarding his opinion about the proposed bill:

1. No, I do not approve of this legislation — which I’m reading for the first time in your email. Our goal, stated in almost every presentation I’ve given, and to which I’ve adhered in my leadership of the Commission, has always been to unlock positive incentives for health IT adoption. The bill does not fit that model at all, and it is a bad idea.

2. Neither I personally, nor CCHIT as an organization, have lobbied, advocated, sponsored, or had anything to do with that bill. We were unaware of it until it started showing up on listserves Friday. The bill has never been mentioned in any of our Trustee, Commission, or staff meetings.

3. Trustees, Commissioners, and Work Group members serve in a volunteer capacity at CCHIT. We require disclosure of conflicts of interest, but we do not monitor all activities in their ‘day jobs’ or other volunteer roles. “HIMSS, CITL, etc” are not affiliated with CCHIT, and we don’t know about all their advocacy activities. I’m not privy to the information you seek.

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