Peggy Beat, Kathryn Traband Co-Author AHLA Briefing on Competing Interests of Interoperability and Privacy for Health Information

Cleveland, Ohio (October 21, 2020) – Data Privacy & Cybersecurity Partner Peggy Beat and Associate Kathryn Traband recently co-authored a Briefing for the American Health Law Association’s (AHLA) Health Information and Technology Practice Group titled "Interoperability, Privacy, and the Common Denominator." The article discusses the current state of affairs concerning the demand for full healthcare interoperability and the related privacy concerns.

The authors begin by pointing out that the “demand for interoperability has never been greater.” Specifically, the Department of Health and Human Services (HHS), the Office of the National Coordinator for Health IT (ONC), and the Centers for Medicare & Medicaid (CMS) have been seeking to advance connectivity and interoperability of health information through initiatives and laws, including the Meaningful Use or Electronic Health Records (EHR) Incentive program. This program provides monetary incentives to providers who move from paper to electronic patient records. As the authors describe, the “move to EHRs was intended to speed up interoperability,” or the sharing of health information. Indeed, ONC and CMS continue to require that healthcare providers, payers, and app developers share information with each other, health information exchanges (HIEs), and the patient. However, as the authors acknowledge, “the need for interoperability must strike a delicate balance with matching patients’ identity and safeguarding patients’ privacy.”

Next, the article addresses patient matching, which is the linking of patient data across healthcare providers with the goal of achieving a comprehensive perspective on patients’ healthcare. Msses. Beat and Traband explain that patient matching, which is “a critical component to interoperability and the nation’s health information technology infrastructure,” has presented significant challenges, with patient match rates between organizations being as low as 50% in certain cases. On this issue, the authors note that, “naccurate patient matching can compromise safety, privacy, and lead to increased health care costs . . . .”

The authors go on to explain the Social Security Act and the Health Insurance Portability and Accountability Act’s (HIPAA) provisions regarding the assignment of a unique health identifier for each individual, which would lead to accurate patient matching. They point out, however, that Congress has continued to ban the use of federal money for developing such an identifier. Msses. Beat and Traband also review recent proposed legislation regarding patient matching and the use of unique patient identifiers.

The article closes by restating the competing interests at hand regarding the interoperability of health information. As the authors describe, allowing “patient data to flow freely between health care organizations clearly has myriad benefits to patient care and efficiency.” However, “tying individuals to their health records from birth via a single identifier presents privacy concerns of a scale never before fully contemplated.”

Ms. Beat is a partner in Lewis Brisbois’ Cleveland office. She has substantial experience as in-house healthcare legal counsel responsible for a variety of matters, including regulatory and data privacy compliance programs, contract management, and cybersecurity.

Ms. Traband is an associate in Lewis Brisbois’ Philadelphia office. She advises and represents clients on a wide variety of privacy and security issues that arise in the handling of consumer and business data.

You can view the full AHLA Briefing here (subscription required).

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