On November 12, the FCC put an end to protections that stopped service providers from charging different amounts of money to stream different kinds of content. Net neutrality protections bar internet service providers, or ISPs, from blocking, slowing, or providing preferred treatment to particular sites and services. The rules are designed to prevent ISPs from charging companies for transmitting their website and/or transmitting data to their customers, from censoring content, or even from blocking websites altogether. ISPs now have the right to control access and to discriminate.

These changes, therefore, will allow ISPs to charge healthcare service providers additional money for transmitting life-saving data ahead of movies, “snapchats”, or any other content provided by those who pay a premium for faster internet access and services. Most of the recent legislation covering technology and healthcare focused on Electronic Medical Record system (“EMR”) implementation, the patient’s right to access their data, and the requirement that providers change from fee for service reimbursement to value-based care. All of these require data access to be successfully implemented. The emphasis on delivering services at home to patients also requires providers have access to data from remote locations. The assumption behind value-based care assumes real-time access to data through the internet. Implementation of these programs is a work in progress.

Today, most patient data is housed in electronic medical record systems. Each facility has its own EMR and, for the most part, none of these systems talk to each other. Even though the law clearly provides for a patient’s absolute right to their medical data, the siloed nature of these systems allows the EMR companies to believe that they have the right to control access to the patient data contained within them. Medical providers are given controlled access to their data only to data on an EMR they purchased. Anyone that does not have direct access to an EMR system, the patient and those involved with the care of the patient, only have access to their data if they physically retrieve it. The system works badly. Congress has made an attempt to fix this problem. Interoperability and electronic access to data have now been mandated. Though not surprising, EMR companies are fighting its implementation.

Congress also passed legislation that moved us from fee for service reimbursement to value-based care. The ability to calculate value requires large amounts of patient data. The ability to aggregate health system data from all disparate Electronic Health Records being used within a given health network is a requirement to determine the quality and the relative performance value of providers.

As part of the move to value-based care, patients are receiving more of their care at home and reporting on the results to their providers. Telehealth, health monitoring on site by the patient or by a caregiver, the use of apps to replace different types of therapy, all are being introduced to reduce costs and increase care quality.

Net neutrality meant that your healthcare data did not have to stand in line behind companies and service providers who pay for faster speed and priority access. It meant that the notification to the hospital from your home EKG unit that you are having a heart attack would not have to stand in line behind someone’s streaming video.

This will no longer be the case. Ability to access data, not on your own EMR system can be so slow, it is painful; patient portals to review data will not operate in real time. Use of applications that transmit data to providers will become less and less valuable without the ability to provide immediate feedback on a patient’s condition.

EMR companies are fighting tooth and nail to block interoperability and to prevent access to their systems by anyone but the provider who paid for it. Eliminating net neutrality gives them another tool in the box to block interoperability. Their ability to purchase the right to exclude shared data without paying a fee to them will make it more difficult for patients to have access to their own medical data.

Priority access will go to people who have the deepest pockets. In healthcare, insurance companies have the deepest pockets. It is extremely unlikely that insurance companies will reimburse providers for the cost of access to faster data. Since insurance companies are unwilling to increase reimbursements to hospitals for these increased costs and hospitals work on razor thin margins; hospitals are unlikely to be able to absorb the costs of priority access.

So if the consumer can’t pay more, and the hospital can’t pay more and the insurance company won’t pay more, priority data access is not going to be provided, even for life-saving communications.

Unless Congress acts, we the people have no recourse or no options to turn this around.

You can’t put supporting the poor and the rich and the government on the back of the middle class.
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