Whitaker: The sequel to Vermont Health Connect?


There are still more questions than answers.

The telecommunications circuits are leased. The offices rented, the computers paid for, salaries and consultants are handsomely paid, the money is spent. But where is the plan?

How was Vermont Information Technology Leaders's budget approved by the Green Mountain Care Board in April, absent the board's review of VITL's plan? How can VITL's business plan be integrated with the Health IT Plan, not completed and adopted since 2010, not to mention VITL's contingency plans, salaries and software licensing contracts being claimed exempt and totally unavailable for public review? How can the long overdue Vermont Health IT Plan include any credible and detailed strategy for telemedicine when no comparable infrastructure analysis nor strategy is included in the state's Ten Year Telecommunications Plan, a complete and duly adopted version of which has been missing since 2004?

After 10 years and nearly $50 million, what does Vermont have to show for our investments in our Statewide Health Information Exchange? VITL administers the Health Information Exchange. Medicity provides the software which contains the functionality. What else is there? Software design, functional data definitions, translations and software code. Simply put, intellectual property.

Vermont hospitals, for the most part, take the position that they own their patients' records. New Hampshire, on the other hand, is the only state in the country which explicitly defines in statute that the patient owns his or her medical records. It's a simple concept: personal ownership of one's own very personal information. Vermont needs such a statute.

Of all the health care administrators and professionals who have served and now serve on the VITL Board of Directors, who, with a straight face, will claim that the hospitals, and not the patients, own the medical records? How could ten years pass and tens of millions of dollars change hands with none of these same professionals asking and fully understanding, who owns not only the records but what about the VITL work product that they have been spending all this public money on?

How on earth can VITL, Department of Vermont Health Access, Secretary of Administration and now the Green Mountain Care Board, in the last several iterations of the Vermont Health IT Plan and drafts, fail to address the data ownership and intellectual property issues of this very expensive Health Information Exchange?

The situation merits some long overdue scrutiny as to the causes and motivations, (dare I say hidden agendas?) for there being so many players and unresolved issues.

The value of uniform designs for health care information and integration is enormous. This is evident to the software vendors, GMCB regulators, testing labs and healthcare providers. The 2005 sale of Vermont entrepreneur Richard Tarrant's firm, IDX to GE Healthcare for $1.3 billion is but one indication of this value.

VITL announced during the June 16 meeting of the GMCB that its primary software vendor, Medicity has agreed to discount its software price for VITL in consideration for VITL serving as a beta-test site for Medicity's software upgrades prior to their release to other Medicity customers. Shouldn't Medicity be paying Vermont substantial royalties for VITL and its consultants designing the HIE software? Medicity's contract with VITL is due to be renewed in 2016. Maybe some fundamental changes are in order.

A pending civil lawsuit brought pursuant to Vermont's Access to Public Records law seeks to have the Washington County Superior Court rule on whether VITL is, or is not an instrumentality of the State. A decision is forthcoming. VITL, using lots of public money for an expert team of lawyers, will almost certainly appeal any unfavorable ruling to the Vermont Supreme Court. Should the Attorney General and/or the Green Mountain Care Board join in the appeal or file amicus briefs?

It remains to be determined just how much of the HIE software was actually designed by VITL. The work dates back to 2005, originally working with GE Healthcare, and now with Medicity, an Aetna Insurance subsidiary, numerous consultants and Vermont healthcare professionals. The work includes all of the software that was designed by and incorporates all or most of the IP created by VITL staff and consultants. The multi-million dollar question is: Who now owns what components of this valuable intellectual property?

The results of the massive $50 million investment of public dollars (so far) in creating the Exchange is our Intellectual Property. This includes the detailed systems analyses and software designs necessary for displaying a common view of health care records stored across many disparate health care providers' internal practice management systems.

VITL is registered with the Secretary of State's Office and the IRS as a non-profit 501(c3) corporation. As such, VITL is prohibited from transferring assets, other than to another non-profit organization with a similar purpose. Assets that would necessarily include all of the aforementioned intellectual property (IP).

This prohibition on asset transfer may well have guided the decisions by VITL on how to craft its suspicious contract with Medicity. The contract reportedly attempts to assign all intellectual property rights of the Vermont Health Information Exchange, the IP of VITL and all of its clients and connected medical entities, to Medicity, and not to VITL or to the State of Vermont.

Vermont non-profit health care providers desiring to gain access to the Health Information Exchange, are explicitly required by VITL to sign a services agreement which includes a provision assigning ownership of all intellectual property not to VITL, but to Medicity.

According to the October 2014 Report of the Vermont Attorney General's Office, it appears that VITL claims to have transferred all of Vermont's core IP assets to Medicity.

Details of this suspect arrangement will hopefully soon emerge as the State Auditor has begun to audit VITL and the complete Medicity contract will presumably be scrutinized. This is to be contrasted with only a redacted Medicity contract made available to the Attorney General's office in 2014.

This might well be the cracked cornerstone that causes the whole house of cards to come tumbling down. Should the Courts decide that VITL is an instrumentality of the State of Vermont, thereby lacking the authority to assign public assets to others, the entire HIE framework and vendor contracts could be called into question.

Few could have envisioned that this massive public investment in health care reform would be distorted to set up a few individuals in business, to pay a CEO a $215,000 annual salary, and institute an expensive monopoly information utility, in perpetuity, to inform our essential health care decisions. Nice work.

This appears to be yet another potentially catastrophic result of neglected oversight of the Executive branch, whose failures to complete statutory IT and telecom planning obligations, whose plans remain glaringly deficient yet go unnoticed, for the most part, by our Legislature.

When do we begin to implement real change to this oft-repeated and wasteful scenario?

Stephen Whitaker, for more than 25 years has voluntarily served as a citizen advocate for government accountability focused on public records, information access, privacy, technology and telecommunications. He lives in Montpelier.


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