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No on Proposition 46 campaign tries to start a hacker panic

New ad by opponents of California's Proposition 46 grossly exaggerates its privacy impacts

Even by the political world's low standards of truthiness, a new commercial being aired by the No on Proposition 46 campaign is jaw-droppingly deceptive.

The proposition would make three major changes in the laws related to the practice of medicine in California. It would quadruple the cap on "pain and suffering" damages in medical malpractice lawsuits, require many physicians to be tested for drug and alcohol use, and force physicians and pharmacists to consult an existing state prescription database before prescribing or distributing certain medications to a patient for the first time.

Each of these elements has drawn fierce opposition from at least some part of the healthcare industry, so expect a brutal back-and-forth on the airwaves this fall. For its part, the No on 46 campaign is playing up the potential cost to consumers, in terms of both the price of care and access to doctors.

Opponents are also trying to persuade voters that the measure would expose their personal health to more prying eyes. But that is, in a word, baloney. Proposition 46 increases the risk of medical data being hacked to the same degree that building a snowman increases the risk of low temperatures. Yet a new television commercial being run by the No on 46 campaign would have you believe that the measure would practically put your medical records up on EBay.

"There's a secret inside Proposition 46," an unseen female intones, as if the text of the proposal weren't being mailed to each and every registered voter in California. (Evidently, the No campaign is counting on people not to crack open the Official Voter Information Guide.) This "secret" is "a troubling provision that puts your personal medical information at risk," she warns.

Then a male voice comes in to say, "Prop. 46 requires doctors to consult a vulnerable government-run database containing your personal prescription drug history, open to law enforcement, hackers, identity thieves or simply accidents." As he lays out this chilling scenario, a headline from CNN Money flashes across the bottom of the screen: "Hospital Network Hacked / 4.5 Million Records Stolen."

Oh no! A vulnerable, government-run database! Open to hackers and identity thieves!

The implication is that the proposition would either create or pump more personal information into a database that's less protected than other online repositories. None of that is true.

The database, called CURES, was established to help fight prescription-drug abuse and trafficking by dispensers and patients alike. State law already requires pharmacists to report to the Department of Justice within a week whenever they dispense certain controlled substances, identifying the patient, the prescriber and other relevant details. The DOJ enters the information into CURES, which qualified providers may consult if they've registered with the department.

Physicians have long complained about CURES information being too easily available to law enforcement personnel and investigators with the state Medical Board. But the database, which is on servers at the Justice Department's data center, hasn't been hacked since going online in 2009. Those 4.5 million stolen health records cited by the No campaign? They were names, addresses and Social Security numbers pilfered from a hospital chain -- a theft completely unrelated to CURES or even prescription records. And while nothing stored online is truly safe, the encrypted CURES data has more layers of protection than the typical state database because it has to meet the higher standards that the federal government sets for personal health information.

What Proposition 46 would do is require doctors and pharmacists to consult CURES before prescribing or dispensing certain controlled substances to a patient for the first time. That's going to vastly increase the number of healthcare providers seeking permission to access to the database, and the underfunded team that overseas CURES will almost surely be overwhelmed by those applications. But that swell of applications is going to happen anyway, thanks to a law the state enacted last year that requires all practitioners who prescribe or dispense those drugs to register with CURES by Jan. 1, 2016. The measure also created a new funding source to beef up CURES, although the money won't be available until next year.

The increased demand for access to CURES could cause headaches, but it won't automatically "open" prescription records to hackers and accidents. Instead, they're the sort of implementation issues the state grapples with on a regular basis, albeit not always successfully. The No on 46 campaign argues that because the proposition includes no money for extra security, it will put prescription records at risk. But that's akin to arguing the state puts sensitive criminal records at risk whenever it tries to crack down on crime. The database is already there, and it's intended to protect the public against the abuse of dangerous prescription drugs -- a real problem that's claiming real lives. It can't provide that protection, however, if it doesn't get used.

Opponents of Proposition 46 contend that the measure itself is deceptive and misleading, packaging three disparate initiatives into one under the guise of protecting consumers. And it is hard to see more than a tenuous connection between drug tests for physicians, increased use of CURES and a higher cap on pain-and-suffering damages in medical malpractice cases. 

But when it comes to misleading voters, the latest commercial from No on 46 tops the charts. Practically everything it wants voters to believe about the measure is wrong.

Follow Healey's intermittent Twitter feed: @jcahealey

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