When is “sharing” too much of a good thing?  And will it get worse for health care systems in 2015?  Read on…..

Data sharing has become a point of sharp focus in the efforts to improve the quality and efficiency of health services in the United States.  Given all that has happened in health care privacy (e.g., higher than ever penalties under the Health Insurance Portability and Accountability Act (HIPAA) and the involvement of more government agencies in the enforcement of privacy violations), next year promises to be an important one for health care and privacy, particularly for integrated health care systems.

So what are the challenges that integrated health care systems should anticipate in 2015 and beyond as they try to streamline the fragmented care model that has dominated for so long in the United States?   Here are the five ghosts of privacy’s future that will continue to haunt our clients:

  1. More Laws Addressing Different Points of Service – In the pursuit of integration, health care stakeholders have been collaborating with others at different points of care.  For instance, hospitals may work closely with rehabilitation centers, or primary care physicians may establish relationships with retail-based clinics.  Some privacy laws target specific points of care rather than all providers, such as the Connecticut pharmacy rewards program law we profiled in Mintz Levin’s Health Law & Policy Matters.  Many states are entering the fray of protecting their residents’ health care data, which creates a challenging patchwork of laws for the industry.  Thus, in establishing collaborative patient data sharing agreements, it will be increasingly more important that contracts take into account the privacy and security obligations of all involved parties before committing to sharing data.
  2. More Breaches, More (Money) Problems – Experian’s 2015 Data Breach Industry Forecast indicates that studies predict that “the potential cost of breaches for the healthcare industry could be as much as $5.6 billion annually.” (Emphasis added).  As health care organizations experiment with increasingly prevalent cloud data storage and transfer technologies, there will be more opportunities for the accidental or deliberate misappropriation of patient data.  And with each and every breach, there are more lawsuits from private and government parties and less tolerance for future lapses in privacy and security policies.
  3. Increased Enforcement from Multiple Agencies – Health care stakeholders will have to increasingly endure enforcement from multiple agencies for behavior that, at first glance, seems perfectly reasonable to foster collaborative care relationships.  For instance, the Federal Trade Commission just announced a settlement with an Atlanta-based health billing company and its former CEO because the company allegedly failed to adequately inform patients who signed up for the company’s online billing portal that it was also seeking highly detailed medical information from pharmacies, medical labs and insurance companies where the patients received services.  In addition, the Office of Civil Rights (OCR)at the Department of Health and Human Services (HHS) is readying to step up its audits based on the lessons it learned while implementing the Audit Pilot Program and is planning for 2015 enforcement successes to surpass those achieved by the agency in the last year.  Compliance with the HIPAA Security Rule will be especially important for future HIPAA audits because it dictates the administrative, technical, and physical standards of how secure the storage and transfer of patient data must be.  Last, the Federal Bureau of Investigation has called out the health care industry for being lax as compared to other sectors with privacy and security practices.  The lesson here is that just because data sharing is a common goal in health care does not mean that agencies will give health care stakeholders a pass if a colorable violation of applicable law occurs.
  4. The Elusiveness of Interoperability – The HHS Office of the National Coordinator (ONC) recently published a draft Federal Health IT Strategic Plan for 2015-2020 for public comment which highlights that a large barrier to efficient and secure patient data sharing is interoperability.  Given that the ONC’s Meaningful Use program’s milestones have been essentially delayed another year, the ONC and CMS hope that health care organizations now have more time to dedicate to creating systems that truly operate seamlessly rather than hastily created workarounds to meet unrealistic goals.  Health care organizations should also pay attention to the ONC’s 10-year Health IT Vision Plan as a blueprint for their own future plans to pursue health IT and data sharing ventures.
  5. Balancing Sharing with Patient Consent – Especially when surveys like the one done by NPR-Truven Health Analytics conclude that patients are not as opposed to sharing of medical data as widely believed, integrated health care systems continue to struggle with understanding the patient’s perspective and goals for sharing their private medical information.  There is a delicate balance between providing patients with enough information about their data sharing activities and rights and overwhelming patients with too many details.  As always, part of this struggle is to comply with federal and state agencies’ interpretation of appropriate patient consent.  There never is a one-size fits all solution, but it appears that agencies are realizing the need to take a more flexible view of privacy in light of integration goals.  Of note, the Centers of Medicare & Medicaid Services’ recently released proposed changes to the Medicare Shared Savings Program (MSSP) specifically addressed how accountable care organizations and their participating providers/suppliers may rely on the “health care operations” definition in HIPAA to justify the sharing of beneficiary identifiable data without requiring express patient consent “to evaluate their performance, conduct quality assessment and improvement activities, perform care coordination activities, and conduct population-based activities relating to improved health for their assigned beneficiary population.”  Based on this interpretation, CMS has expanded the universe of data that ACOs may share among the ACO participants, which could make it easier for health care providers to coordinate care.

Overall, as a recent Harvard Business Review article states, the reality is that “patient privacy protections inhibit the sharing of health information, creating both perceived and real hurdles.”  Clients in the health care industry should remain vigilant in 2015 to see how the legal landscape adapts to the need for increased coordination in health care, and continually contribute to the conversation at all levels of health care privacy and security policymaking.