OEMR Board Meeting - Wednesday, June 14th, 2017

Here is the Agenda for June 14, 2017 OEMR Board Meeting:

  1. Call to Order. Roll call.

  2. Approval of prior meeting minutes.
    -April 12, 2017 Board Meeting.
    -May 10, 2017 Board Meeting.

  3. Financial Report

  4. MU3 Report (ONC 2015)

  5. Unfinished Business
    -Revocation status.
    -Conference outreach.
    -Raising funds.
    -Conflict of interest policy.
    -Join OSI.(pending)

  6. New Business

  7. Public and Community Concerns

  8. Next Board Meeting on July 12, 2017

  9. Adjourn Board Meeting

Audio files for prior meetings can be found here:

May 10, 2017 Board Meeting minutes are here:

April 12, 2017 Board Meeting minutes are here:

Just let me know if there’s any other business that needs to be added to the agenda.

thanks @brady.miller, here’s the latest advice from the attorneys regarding our reinstatement:

I have reviewed the IRS’s adverse determination letter, OEMR’s protest
letter and the IRS’s response, and I did some preliminary research
within the range requested by the client to see whether there is even a
basis to contest the IRS’s determination. Based on my review of the
materials and limited research, it is not clear whether the organization
would prevail at Appeals, but they can certainly try to appeal the

OEMR is a non-profit organization formed to ensure that all people,
regardless of race, socioeconomic status or geographic location, have
access to high-quality medical care through the donation of free, open
source medical software and service relating to that software. OEMR
supports the OpenEMR project and uses OpenEMR software as an instrument
to effect its goals. According to our research, software issues under
the Internal Revenue Code have always been challenging, and in 2013 it
was reported that exemption applications for open source software
projects had landed on the IRS watch list. Following this report, word
came out that the IRS was denying 501©(3) status on many of these
projects, and private rulings denying tax exempt status were released.

For example, in PLR 201349022 (Dec. 6, 2013) (copy attached), the IRS
denied an exemption for an organization that maintained a website for
the development and dissemination of a FLOSS fluid dynamics modeling
program and was formed solely to promote the development, distribution
and adoption of the free open source software code and associated
documentation comprising the software application, for benefit of the
general public. Despite the clearly scientific content of the program,
the IRS’s rationale for denial was perfunctory: “Maintaining a website
to promote the development, distribution and adoption of open source
software is not an exempt purpose.” The IRS did not that the
organization’s day-to-day operations were devoted solely to maintaining
their website that hosts and makes software available and it engaged in
no other activities. Because the organization did not protest and
challenge the IRS’s decision, a more in depth analysis of the IRS’s
ruling and reasoning is not available.

The protest letter submitted by OEMR was not very well written and did
not provide an in depth analysis of the facts, issues and law at hand.
The protest letter attempted to explain the differences and the
separateness between OEMR and OpenEMR, but made many references to OEMR
supporting the “charitable side” of OpenEMR. However, based on the PLR
referenced above, the IRS may not view OpenEMR’s activities to be
charitable. If we were to assist OEMR with challenging the IRS’s
adverse determination at the Appeals level, I would suggest having us
prepare a response letter to be submitted to Appeals that provides an in
depth analysis of the issues, facts and law at issue and that describes
in further detail the separateness between OEMR and OpenEMR and the
other “charitable” and “educational” activities that OEMR engages in.

Although the IRS has issued many denials related to these types of
organizations, the IRS has also approved exemption applications related
to these types of organizations. The following is a link to some of the
private letter rulings and other documentation of IRS determinations
relating to FLOSS (free/libre and open source software) organizations –
If we were to challenge this with IRS Appeals, we would want to review
all of these private letter rulings to discern patterns in the IRS’s
approval or denial of exemption applications submitted by organizations
with activities related to open source software. The following link
provides some discussion on patterns in approvals and denials related to
these types of organizations - https://opensource.org/node/840. It
notes that organizations whose 501©(3) applications were approved
between 2010 and 2014, generally speaking, worked on software that
served traditionally “charitable” or “educational” purposes (as the IRS
has interpreted those concepts) (e.g., supporting development of
software for use by educational institutions, producing medical records
platform for healthcare providers, particularly in developing countries,
producing a software platform to support disaster relief). By contrast,
most of the organizations whose 501©(3) applications were denied
produced more general-purpose software (e.g., developing tools to enable
engineers to model fluid dynamics, producing web standards and
accompanying software to ease federation between websites). This
article further notes that there was little else to distinguish the
organizations that were denied from those that were approved and there
was a fair amount of overlap between approved and denied organizations.
According to the article, it is impossible to know what ultimately made
the difference for the “close-call” applications that were approved and
in all likelihood, it was a mix of factors, including the quality of the
application and the receptiveness of the individual examiner.

In light of the above, it may be worth trying to take this to IRS
Appeals and submitting a well-written, detailed analysis, assuming that
the client understands that a good amount of time will be involved in
doing additional research, preparing the written analysis and working
with Appeals and there is a risk that they may not prevail at the
Appeals level. Please let me know what your thoughts are.

“as the above discussion demonstrates the IRS has not been friendly to
claims that creating open source software is a valid scientific,
charitable, or educational activity in its own right. However, a variety
of organizations have secured tax-exempt status despite the Service’s
concerns with FLOSS in general. Typically, their key to success has been
convincing the IRS that the organization had a larger charitable
….purpose to which the FLOSS activities were somehow incidental. This is
often easier to demonstrate where the software development activities
are only one among several complementary ways of furthering exempt
purposes. It is also easier in cases where most obvious uses of the
FLOSS are themselves charitable. The following are examples of
organizations whose exempt status were approved: • An organization that
lessened the burdens of government and conducted educational research by
collecting information about election technologies and problems with
those technologies, developing sample code to address those
technologies, and making all of this information available to state
elections officials and other stakeholders through white papers,
conferences, and other communications. • An organization that created a
platform for tracking medical records electronically on the kinds of
resource-constrained hardware environments available in the developing
world. Often the easiest larger purpose that can subsume a FLOSS
development effort is an educational purpose. As there are few limits on
the range of topics an educational organization can pursue, many FLOSS
organizations can find an educational effort with which the published
source code would fit well as a demonstration project or otherwise.”

Again, this further demonstrates that it may be worth challenging the
IRS’s adverse determination and if were to challenge it at the appeals
level, we should prepare a detailed analysis explaining the other
“charitable” and “educational” activities that OEMR engages in. Please
let me know if you have any questions.

updated financials Balance Sheet (eguile)–06_13_2017.pdf (88.0 KB)


Here’s the audio for the June 14th, 2017 board meeting: