Let’s face it, I haven’t actually been nice to Google of late when it comes to healthcare (or maybe I have, just once). While I believe the criticisms are justified, I can see why some people might think I’m beating a dead horse, namely Google Health. But there are some unresolved questions in the area of privacy that Google really should answer.

Google’s ill-fated attempt at a PHR isn’t completely dead. The company won’t “retire” the online service until January, and will allow users to download their data through Jan. 1, 2013. Naturally, others have stepped up to try to fill the (tiny) void left by Google Health’s demise. To nobody’s surprise, Microsoft is helping the remarkably small number of Google Health users transition their accounts to HealthVault, Microsoft’s own overly hyped, underutilized PHR platform.

What concerns me is what will happen to data already on Google’s servers. Will records be archived? Will sensitive patient health data stay on Google’s servers in perpetuity? Nobody has said for sure.

Are records safe from Google’s data-mining juggernaut? Google has consistently said that it would not use health records for anything other than to steer traffic to its core search engine, but let’s face it, Google’s primary source of revenue is from algorithm-driven advertising.

But, you say, HIPAA protects patients from unauthorized uses of their data, right? Well, remember back to 2009, when the American Recovery and Reinvestment Act expressly made third-party data repositories, health information networks and, yes, personal health records, into HIPAA business associates, effectively holding them to the same rules as covered entities under HIPAA.

Wouldn’t you know, both Google and Microsoft came out and said they were not subject to this provision. No less an insider than former national health IT coordinator Dr. David Brailer, who was a part of the legislative negotiations, told me then that lawmakers had Google Health and HealthVault specifically in mind when they crafted the ARRA language. As far as I know, there haven’t been any reported data breaches involving either PHR platform, so there’s been no need to test whether ARRA actually does apply to them, but if I had my data on Google’s or Microsoft’s servers, I’d be concerned. I’d particularly want to know what Google plans on doing with the data it’s been holding once Google Health does shut down.

Perhaps it’s time for me to make some phone calls.

The Healthcare IT writer at BNet, Ken Terry, recently posted a quote from David Brailer, former national health IT czar, about the final meaningful use rule and physician adoption of EMR:

Brailer, like a number of other observers, believes that federal overseers at the Department of Health and Human Services will lower the bar when the final regulations are published next month. “I expect the final rules will be softer, more developmental and incremental,” he said.

That would be good news for doctors and hospitals. Still, many physicians are reluctant to make the leap into health IT because they have to invest in it upfront, before getting any subsidies, and they worry that it will kill their productivity.

I agree that the final rule for meaningful use will have a lower bar. However, will it be a significantly lower bar or will it just have a few elements that lower the bar without any real meaningful changes?

The challenge is that HHS is faced with dealing with the legislative requirements that they’ve been given against the comments they’ve received. It seems like at this point that those two items are at odds and HHS is in a tough position with few ways out.

Either way, I think we can all agree that we’d all just love some meaningful details on how to get the EMR stimulus money. Good or bad, reasonable or unreasonable, it would just be nice to know the details so that we can make some informed decisions.

Check out some really interesting quotes from David Brailer talking about the meaningful use definitions, ONC and the ARRA EMR stimulus money from healthcare IT news. My comments are in italics.

“It would have been easy to be symbolic rather than meaningful,” the founder and chairman of the San Francisco-based healthcare investor firm Health Evolution Partners said. He expected the criteria to “be looser, less meaningful.” Instead, he said, “I’m pretty impressed.”

I think I’d have preferred symbolic. I’d be interested to see something that shows how each of the criteria improves patient care and the efficiency of our healthcare system. Certainly a few of the measures have really great potential to provide some amazing benefits. Not to mention adoption of EMR software has many great potential benefits. Sadly, meaningful use might have been written SOOO meaningful that few solo practices will benefit from the stimulus. Of course, I might argue that this is the best thing that could happen to small practices. Now they can focus on implementing an EMR that works for their clinic instead of one that works for stimulus money.

Under ARRA, Congress provides incentives first and then penalties. Citing its track record with regard to Medicare issues, Brailer doesn’t believe Congress will follow through with penalties and will either delay or phase them out.

The problem, however, is that the Congressional Budget Office expects $30 billion in additional net bonuses over the next 10 years to come from the penalties.

This is an interesting comment about the proposed penalties. ONC/HHS is certainly going to need to consider what to do with these penalties. Will they start penalizing all these smaller practices despite making the meaningful use criteria prohibitively complicated for most? I’d hope not, but this is government.

Expect to see more fragmentation in 2011, Brailer said. “We’ll be approaching the peak of the hype cycle,” he said. He presages a “real slide back to reality,” with the money coming from CMS flowing “slower than everybody thinks.”

The pushback to reality is predictable and required with any hype, he said. Despite the challenges and problems ahead, Brailer said, “the problem isn’t whether we are making progress. We are.”

I really like this description a lot. A “peak hype cycle” which will “slide back” to reality. Reality always cuts through the hype. I do agree with Brailer’s final assertion. Progress towards electronic medical record is happening. Progress towards adoption of IT in healthcare is happening as well. I still believe that EMR adoption has been slowed by the EMR stimulus. However, the education that people have gotten thanks to the EMR stimulus may be the most valuable side effect of the EMR stimulus money.

On my twitter stream I was getting a number of skeptics around my previous post about meaningful use and EHR certification being simplified by CMS (Medicare & Medicaid Services). They seemed a bit surprised that CMS would simplify meaningful EHR use.

Let me add a little more content and context to why Marc Probst thinks the way he does about this subject and why I wholeheartedly agree with him that MU and certified EHR’s final rules will be simpler than they are in their current form.

One of the most compelling reasons Marc gave was when he talked about a meeting he had with David Brailer. In their meeting David Brailler told Marc Probst that “Meaningful use will be a small bump in the road.” Marc then described David Brailler’s reasoning. Basically, the EHR stimulus package is only $20 billion (yes, I rounded to make the math nicer) of spending by the government after you take into account the penalties and other savings they should achieve. If you look at that spending over the number of years it will be given out we’re looking at somewhere in the neighborhood of $3 billion per year (another round number) of spending by the government. Then, the all important question:

Is CMS going to put a bunch of major roadblocks in the way of the government spending $3 billion per year on EHR?

Of course the answer could be discussed, but the point is that $3 billion in the government’s budget is nothing. Yes, I’m cringing while typing that, but it’s true. That’s why David Brailer is dead on when he says that meaningful EHR use will be a small bump in the road.

Personally, I think this is a great thing. I’ve been arguing that the barriers to this money are too high that it would be a mistake for doctors and clinics to focus too much of their energy on getting the EHR stimulus money. Now if those barriers were to lower, we’d not only see the increase in interest in EHR software, but we’d also see a significant and meaningful increase in adoption and purchase of EHR software. Then, the fun really begins.