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
- written in various HIMSS publications (HIMSS HIWLights, an editorial in HIMSS Advocacy Center )
- speaks at HIMSS sponsored events. In particular, in 2008, he attended “The Healthcare Technology Evolution: Smarter Solutions for Better Patient Care”, a 300 attendees event from the New Jersey and Delaware Valley chapters of HIMSS .
- Dr. Conaway was one of four state legislators who spoke at this year HIMSS conference’s State Officials Forum.
- Dr. Conaway was one of two recipients of the HIMSS State Leadership Award in 2008.
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:
IT regulations and health regulations could be consider sometimes as barriers to innovation. But regulation is needed, isn’t it?
If ever someone were to devise legislation that locks out innovation and competition, they couldn’t top this bill. There are so many reasons why this piece of legislation is just wrong:
1) it provides CCHIT a monopoly on deciding which health information systems are allowed to be used in New Jersey. There do not appear to be any requirements for CCHIT’s certification process to be subject to review, nor for it to be impartial.
2) It guarantees an exclusive revenue stream for CCHIT to handle the certification process, which typically runs in the four or five figures.
3) It virtually guarantees delays on the rollout of new technology, as brand-new EHR systems are subjected to CCHIT review.
4) It provides no guarantee that CCHIT can even keep up with current technologies. Should someone develop a true paradigm-shifting health IT system, it would very likely be held up by CCHIT’s inability to certify new technologies.
5) For the provider of any PHR on the Internet, this bill creates a jurisdictional nightmare, as HealthVault, Dossia, and GoogleHealth would have to freeze every New Jersey user account until they receive CCHIT certification. Should they choose not to comply, they would have to make users sign disclaimers that they are not New Jersey residents.
6) CCHIT certification makes it nearly impossible to componentize EHR technologies into plug-and-play parts, a practice commonly used in the open source community.
If this bill were passed, it would become needlessly costly and difficult for a startup firm to develop a new EHR, for say, small rural physician practices. It makes and open source approach impractical for developing new EHRs, cutting the industry off from a good source of inexpensive innovation.
This bill is a blatant attempt by established HIT vendors to lock out competition through CCHIT. Let’s hope it doesn’t succeed.
And therein lies the reason why our corrupt government cannot in any way be trusted to protect the good of the people vs. the special interests of a few trying to make as much money as they possibly can off the good people of this wonderful country.
The easy way out for physicians I’m sure is to simply not accept insurance, Medicare, and Medicaid.
While I don’t think this bill has a chance of passing, you should keep in mind that many state legislatures *have* passed similar bills making other certifying/accrediting organizations the de facto, or deemed, official standards organization. I’m thinking Joint Commission (hospitals, nursing homes, etc) and URAC (health insurance companies, IROs, disease mgmt companies, etc).
So, would this bill be different if it said that HIT software had to be certified by a company that met X-Y-Z criteria, but not specify which company?
Leavitt denies knowledge of the bill
That ‘listserves’ and ‘IRCs’ are still employed seems a tad bid anachronoistic to me, especially with those of the IT persuasion.
Am I missing something here, or doesn’t microblogging, blogging, FriendFeed Facebook and a litany of other real time connections now available with more robust engagement options, dwarf these legacy mechanisms?
Good catch Gilles!
Fastidious answer back in return of this query with real arguments
and explaining all on the topic of that.