Here's why healthcare should be talking about net neutrality

The techie term “net neutrality” likely isn't in the daily lexicon of most senior healthcare executives. But it should be, and soon, argue those in healthcare technology who have been following the topic.

The wireless telecommunications industry's trade group, CTIA, for example, has been circulating a letter to healthcare organizations, asking their support to oppose regulation that would ensure continued net neutrality. But others argue healthcare benefits from net neutrality and should be lobbying for its continuance via a new Federal Communications Commission mandate.

Net neutrality means everyone sending data is treated the same by carriers like Verizon and others; no one can pay or be charged more for faster transmission speeds and none can be barred from sending data. The tool that net neutrality advocates want to use—Title II of the FCC's authorization act—would essentially make internet traffic into a public utility.

The FCC is expected to rule either by year-end or early next year.

The debate on net neutrality has intensified as the amount of data being transmitted in videos and other usages has increased, leading some to argue that too much traffic is crossing a too-small network, slowing down performance.

Telehealth and electronic record data exchange are the two primary areas of healthcare that would suffer were internet service providers allowed to charge higher prices for faster transmission speeds, say those who back net neutrality.

“I don't think people realize how much net neutrality can affect health services,” said Mark Gaynor, an associate professor of health management and policy at St. Louis University and a long-time advocate for net neutrality.

President Barack Obama earlier this month put the spotlight on the issue when he called on the FCC to “implement the strongest possible rules to protect net neutrality.”

But he muddied the debate when it comes to healthcare by saying the rule, “can have clear, monitored exceptions for reasonable network management and for specialized services such as dedicated, mission-critical networks serving a hospital.”

But many critics of a net neutrality rule believe that allowing internet service providers to charge for a “fast lane” or “paid prioritization” would be helpful for innovation. Such pricing would allow data from paying content providers to move more quickly to consumers. Currently, they argue, many networks slow at peak times when everyone wants to view Netflix videos or use other heavy bandwidth applications, like online gaming.

Charging those users more allows for more efficient usage of limited bandwidth, and provides an incentive to internet service providers to build more network infrastructure, which would accommodate more usage down the road. That position is partially supported by a July 2014 draft paper produced by two FCC officials, which use a model to show that overall market efficiency is improved if broadband providers are allowed to charge for fast lanes.

Billionaire internet entrepreneur Mark Cuban argued, in a post on his personal blog, that this debate has particular relevance to healthcare.

Hypothetically, he said, an emergency surgeon might want to access an internet application for a surgery—and finds that she can't get enough bandwidth for the service to work because “TV and movie services … swamp bandwidth.”

A net neutrality rule, he suggested, encourages that situation for two reasons: because it prevents the investment that would make a bigger network for everyone; and because it prevents high-priority data from jumping to the front of the line.

Cuban also doesn't believe Obama's exception for hospitals—which might put it at the front of the queue—would do much good, writing, “First in line in a traffic jam is still slow and buffering.”

Also opposing neutrality, Verizon has argued in a letter (PDF) to the FCC, that classifying internet traffic under Title II is not legally permissible, and an attempt to do so would invite legal challenges.

The push-and-pull over net neutrality has left the FCC's decision uncertain. The Washington Post reported on Nov. 11 that FCC chair Tom Wheeler had rejected Obama's call to reclassify internet traffic to Title II and he was looking to “split the baby” between internet service provider and net-neutrality advocate concerns.

Most opponents of formal net neutrality believe that classifying internet traffic under Title II would result in onerous new requirements for internet providers, as the section was designed for older types of networked communication.

Jot Carpenter, the vice president of government affairs for CTIA, said in an interview that the rules would slow new innovations for wireless providers. The exception proposed by Obama, he said, would introduce confusion for the providers.

In those instances, he said, they would have to approach the FCC and see whether their intended idea—whether a formal partnership with a content provider or an economic arrangement—fell under the hospital exception. Carpenter derided that as the “Mother, may I?” approach to governance, which he argued is bad for innovation.

It's also unclear what might fall under the exception, Kerry McDermott, the vice president of public policy and communications for the Center for Medical Interoperability and a former FCC official said. Which hospital data would apply? Would other healthcare data apply?

Because of that perspective, Carpenter and CTIA have been circulating a letter to healthcare groups arguing that proposed reclassification would increase regulatory uncertainty for mobile health, which they argue is too young to withstand the shock.

While Carpenter declined to name which stakeholder groups had been contacted, a draft copy of the letter obtained by Modern Healthcare includes comments from the Healthcare Information and Management Systems Society. It's not possible to attribute specific comments on the letter to the organization. As of press time, HIMSS had not responded to inquiries regarding the letter. And Carpenter wouldn't discuss when the letter would be officially released, or with which signatories.

But Gaynor and others are anxious about the negative effects of allowing providers to charge higher prices to content providers.

“I don't want to see small companies that are trying to innovate be locked out by bigger companies that have more money and can pay for faster service,” Gaynor said.

Carpenter rejects that argument. “I don't know that there's any evidence to suggest that these startups would be prevented from reaching their customers or gaining critical mass in the marketplace or gaining notice. Paid placement isn't always an evil,” he said, citing Google's early history as an example.

And facing a toll might also hurt efforts to encourage interoperability, Gaynor continued. The healthcare system is hoping to encourage more data sharing, often through Health Information Exchanges. A charge for faster service provides a disincentive to sharing overall, and in particular hurts HIEs—which are non-profit and often struggle to find the proper business model under current conditions.

Innovation might be hurt in another way, Gaynor and his co-authors argued in a July 2013 paper in the Journal of the American Medical Informatics Association. Some internet service providers own or are closely associated with healthcare services; Verizon, for example, has a virtual visits telehealth service, as well as an Apple HealthKit competitor called Converged Health Management. If internet service providers are allowed to discriminate between content providers, they might favor their own, Gaynor writes.

That argument also attacks the FCC officials' paper, which assumes that broadband internet service providers are not vertically integrated with a content provider.

Steve Kraus, a partner at venture capitalist firm Bessemer Venture Partners, agrees with Gaynor's argument. “The whole premise of telemedicine would fall down,” he said, if startups suffer lagged performance.

He argued that the net neutrality debate is particularly relevant to healthcare: first, patients and providers often need speed in making care; and second, because the data being moved in healthcare—like medical records, genomics, and video—is often so large.

Kraus' colleagues agree, and are worried about the large telecommunications firms potentially giving themselves an unfair advantage, noting that both Verizon and AT&T have been investing heavily in healthcare.

Virtual visits firm American Well also feels strongly about net neutrality. In an interview, the firm's senior vice president of consumer markets, Mike Putnam, said that he believes paid prioritization would decrease healthcare access and cause the firm to pass on costs to the consumer.

Seth Ginsberg, the president of non-profit Global Healthy Living Foundation, has been advocating for net neutrality in Capitol Hill—and actually retained a lobbyist to do so, the only purely healthcare entity registered in the Senate's lobbying database to list net neutrality as an interest.

Ginsberg's organization, which helps patients with conditions like rheumatoid arthritis, believes that paying tolls for faster service would harm its relationship with patients. The organization is a nonprofit, and can't afford to pay a toll; and yet it also communicates time-sensitive information, concerning drug safety for example, to its patients. Allowing a fast lane would put the organization in a bind.

Ginsberg is contemplating complementing his firm's lobbying efforts by adding the voices of his patients, who he said are in all 50 states. He has seen a lack of healthcare interest in the political half of the debate. He suspects it's due to the other large healthcare IT issues on the docket, like meaningful use and the ICD-10 code switch.

Follow Darius Tahir on Twitter: @dariustahir